Many of us avoid the subject of death whenever possible. We don’t plan for what will happen to our property, who will care for our minor children, or even whether we’ll be buried or cremated. Unfortunately, this invites disaster for unmarried couples. If you die without a will or other legal means for transferring property (for example, a living trust), the survivor will inherit nothing unless you and your partner have a legally recognized common law marriage, a registered domestic partnership in the states that allow it, or a valid contract. Instead, close blood relatives (such as your children, parents, or siblings) will inherit everything. State laws dealing with inheritance are designed to pass property only to spouses and blood relatives.
This article explains what unmarried couples living together need to do now—including writing a will—to ensure that your property goes to the people you want to inherit it.
A will is a document in which you specify who gets your property when you die. It is easy to make a will, and you can leave your property to anyone you wish, including the person you live with. You can change or revoke your will whenever you like; you’re not stuck with it once you make it.
The one drawback of a will is that if you leave property through a will, probate court proceedings will probably be required before the property can be transferred to the people who inherit it after your death. If your estate is small, however, you may be able to avoid this time-consuming and sometimes costly court process. There are lots of ways to leave property but avoid probate (discussed in the article How to Avoid Probate on this site).
Here are some of the important things you can do in a will:
• Leave anything you own to any person or institution you choose. For example, you can leave money, book royalties, and clothes to your unmarried partner.
• Forgive debts owed to you.
• Recommend a personal guardian who will take care of your children if you can’t.
• Name a property guardian to manage your minor children’s property.
• Set up simple trusts to delay when a beneficiary gets the property (this is wise if you have young kids).
• Name someone to supervise the distribution of property left by your will. This person is called your executor or, in some states, your personal representative. You can name your partner or anyone you trust to be your executor.
• Disinherit anyone you want (unless you are married—in most states, it is impossible to disinherit a spouse unless you get a divorce).
• Revoke all prior wills, including any handwritten document that could possibly be construed as a will.
Before making a will or doing other estate planning, you need to know what property is yours. If you’ve lived with a partner for a long time, your property may be so mixed up with your partner’s that you can’t tell who owns what. If you and your partner want to leave all of your property to the survivor, who owns what doesn’t matter as much. But if not, sit down and make an agreement defining property ownership. A Sample Property Ownership Agreement is shown here that divides property into three categories of ownership: what’s yours, your partner’s, and/or and jointly owned. You can also use one of the living together agreements discussed in the Property Agreements section of this site.
A will itself is a fairly straightforward document, but filling it out requires careful thought on everything from how to choose a guardian for your children and an executor for your estate to being clear about what property you and your partner own (individually and jointly). Nolo’s website includes an extensive section on wills and estate planning, with easy-to-understand details on the key issues you need to know. In addition to all the free information on making a will and planning your estate, you’ll also find several will-drafting resources that will help you get the job done simply and legally, including Nolo’s comprehensive will and estate planning software, Quicken WillMaker & Trust.
In addition to planning for your death, you should also take steps to protect yourself, your partner, and your assets in the event that you ever become unable to make your own medical or financial decisions because of injury or serious illness. The best way to ensure that your affairs will be managed as you wish is to prepare a health care directive and a durable power of attorney for finances. See the article Making Medical and Financial Decisions for Your Unmarried Partner on this site for details.
Most people with estates less than $2 million, can prepare a will without the help and cost of a lawyer. But if you have a large estate and want extensive planning, have children from one or more previous marriages, or are not yet divorced, you’ll probably want to see a lawyer—even if you read up on the subject and do much of the preliminary planning and drafting work yourself. See Nolo’s Lawyer Directory for a list of local estate planning attorneys.