Estate Planning for Unmarried Couples

Senior Law News | Aug 8, 2019 | Emily A. Martin

In recent years, the percentage of couples getting married has declined, and those who do get married, are getting married later. In fact, according to the Current Population Survey from the Pew Research Center in 2017, the median age at first marriage reached its highest point on record at 30 years for men and 28 years for women. Additionally, it has become more and more common for couples to live together before getting married – or to live together without getting married at all. In 2016, 18 million adults were living with an unmarried partner – a 29 percent increase from 2007. With the marriage rate declining, it has become more important for unmarried couples to plan for the future. Who will receive your assets after you pass away? And perhaps even more importantly, who will have the right to make decisions for you if you cannot make them on your own? All unmarried couples in a long-term relationship should address these difficult issues.

The first issue to consider is how your assets will pass after you pass away, and who will have the responsibility of managing your affairs after your death. If you do not have a will, then the laws of intestate succession for your state will determine who receives your assets upon your death. In Virginia, if you are unmarried, the default law states that children receive your assets first. If you do not have any children or grandchildren, then your parents (if they are living) will inherit everything, followed down the line by siblings, nieces and nephews.

If you are in a long-term relationship, chances are you would like for your partner to receive some or all of your assets upon your death. A will or a trust is one way to ensure that your assets pass the way you want them to. In these documents, you can designate that your partner receive a portion of your assets (or all of them, if you prefer). You can also name your partner as your executor or trustee, which gives them the authority to pay your debts, collect your assets, and manage your affairs after you die.

Another way to make sure that the right people receive your assets after your death is through beneficiary designations and “transfer on death” designations. If you have retirement accounts, annuities, or life insurance policies, it is important to keep the beneficiary designations on these accounts updated. These types of accounts typically allow you to name one or more primary beneficiaries as well as contingent beneficiaries who would only receive the assets if the primary beneficiaries were deceased. Because assets with beneficiary designations typically pass outside of probate, adding these designations to your accounts is one important way to avoid your estate having to go through the probate process after your death. Additionally, you can add “payable on death” or “transfer on death” designations to your bank accounts. Some states, including Virginia, even allow you to complete a “transfer on death” deed for your real property. This deed, which takes effect only after you die, allows you to designate one or more people who will receive your real property upon your death.

While many people are focused on what will happen after they die, they often forget to focus on what will happen if they don’t die, but instead become incapacitated and cannot manage their own affairs. A well-rounded, comprehensive estate plan answers both questions. It is important to make sure that your wishes regarding what will happen if you become incapacitated are well-documented. If you do not complete a financial or healthcare power of attorney, your partner could be forced to file for guardianship and conservatorship to be granted the authority to manage your affairs. This is a costly court process that often involves conflict between family members and other loved ones. If you wish for your partner to be able to make financial and medical decisions for you upon your incapacity, you need to sign a financial power of attorney as well as a healthcare power of attorney. Having these documents in place can help save a great deal of heartache and money if you become unable to manage your own affairs.

Although it is not a pleasant topic, estate planning is a very important one. It is a good idea to review your plan frequently (every three to five years, or more often if you have had a change in circumstances) and adjust it accordingly. If you and your partner part ways, if you have children, or if you find yourself in a new relationship, your documents may need to be updated to reflect that change. As always, having an open and honest dialogue with your partner about your wishes and letting them know that you have named them in your estate planning documents is crucial.

Although unmarried couples can face unique struggles when it comes to planning for incapacity and death, a little advance planning can allow you to make your wishes known while giving your partner the authority they need to handle your affairs if you are unable to do so.

Ask Kit Kat: Dog-Cat Stories

Hook Law Center: Kit Kat, do you have some feel-good animal stories for us?

Kit Kat: Yes, I do! One is about a dog, and one is about a cat. First, let me tell you about Kylie, the German shepherd, who is a trained cadaver dog. Kylie works with the District of Columbia’s fire department, and she is one of 4 such dogs which work with that fire department. She was severely injured in July when she stepped on a hidden fence along the Arlington-Alexandria (Virginia) border. She actually became impaled on the fence, causing her to bleed profusely. She was then taken by medevac helicopter to an animal hospital in Northwest Washington for treatment. She needed several surgeries in order to recover. But recover she did. The bones she helped uncover that day (July 19) are still under investigation. The five-year old shepherd is a marvel and essential member of that cadaver team!

Now let’s switch to our cat story. Tissy, is a Maine Coon cat, orange in color. Their hair is longer than the typical domestic shorthair cat. Maine Coon cats are also quite large and can weigh between 8-11 lbs. for a female and 13-18 lbs for a male. Tissy is unusual, though not really unique, because she loves water. She was adopted by a family in western Pennsylvania, who found her as a kitten, in a parking lot near the county fair. When Tissy was about a year old, her family discovered she loves to swim. So Tissy now wears a floatie around her middle, which lengthens the time she can stay in the water. The family also reports she loves bubble baths, so her swimming is not limited to summertime only. Who would have ever thought a cat would actually enjoy swimming? Wonders never cease. (Dana Hedgpeth & Associated Press, “D.C. cadaver dog impaled on the job returns to work; Pennsylvania cat dives in summer with love of swimming,” The Virginian-Pilot, August 3, 2019, p. 11)

Emily A. Martin

Attorney, Shareholder, Esq.
757-399-7506 | 252-722-2890
[email protected]

Emily A. Martin is a Shareholder of Hook Law practicing in the areas of elder law, estate and trust administration, estate planning, asset protection planning, litigation and dispute resolution, guardianship and conservatorship, long-term care planning, special needs planning and financial planning.  To date, Ms. Martin has overseen over 100 guardianship and conservatorship matters.  In addition to being admitted to the Virginia State Bar and North Carolina State Bar, she is licensed to practice before the Department of Veterans Affairs. Ms. Martin is a member of the National Academy of Elder Law Attorneys and Virginia Academy of Elder Law Attorneys. She is a graduate of the University of Mary Washington and Regent University School of Law. Prior to joining the firm in 2018, Emily worked as an estate planning and elder law attorney in Virginia Beach for several years.

Practice Areas

  • Elder Law
  • Estate & Trust Administration
  • Estate Planning
  • Asset Protection Planning
  • Guardianship & Conservatorship
  • Long-Term Care Planning
  • Special Needs Planning
  • Financial Planning
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