Marriage is only one of many forms in which individuals who are committed to each other can build a life they share. Affection, devotion, and a desire to share your present and your future with someone who matters to you are not limited to relationships recognized by law. Unfortunately, unmarried partners in many cases do not enjoy the same automatic legal protections as do married couples – but modern estate planning tools offer individuals who are not legally married a number of robust options for protecting each other, now and for years to come. The experienced estate planning professionals at Roulet Law Firm, P.A., have worked with unmarried partners in both deeply traditional and happily unconventional relationships at our offices in both Minnesota and Florida. Whatever your particular estate planning concerns and goals, we welcome the opportunity to help you create an estate plan that works for your life and loved ones. Reach out to our teams by calling (941) 909-4644 in Florida or (763) 420-5087 in Minnesota to schedule your consultation.
Why Estate Planning Is Important for Unmarried Partners
Probate laws in most states – and a variety of other legal considerations – prioritize marriage relationships. Partly this is because far more people get married, at some point in their lives, than do not. Partly, however, it is also because marriage has long been a legally privileged institution in the history of our society.
Brief History of Marriage and Estate Planning
In the centuries when the legal traditions that form the basis for most American jurisprudence were being formed (in most of the United States, laws regarding both domestic life and the handling of decedents’ estates are adapted from principles found either in English Common Law or in French Civil Law), one of the main functions of marriage was to ensure the orderly transfer of property – from one family to another, and from one generation to the next. Even the role marriage played in validating the legitimacy of children held much of its importance because legitimate heirs had rights in a decedent’s estate that their illegitimate half-siblings – no matter how beloved – could not claim. In a sense, then, estate planning and marriage have shared a connection for as long as our system of laws has been in existence.
Modern Estate Planning Options for Unmarried Partners
The same cannot be said for a connection between estate planning and love, or estate planning and loyalty and affection. While in modern America we usually hope that a marriage will encompass these fine qualities, we also know that they can often be found in a relationship that is not framed by a legal or religious ceremony – indeed, in many cases finding these attributions in their connection with another human being is what leads an individual to propose marriage in the first place. Others, finding a similar connection, may for a variety of reasons choose not to legally formalize the nature of their bond. Fortunately, these days, while the standard provisions of most state laws are not designed with these unmarried partners in mind, strategic estate planning provides a number of options that individuals in these loving and committed relationships can use to protect and care for each other. An overview of some of the most common strategies unmarried partners use to protect each other during estate planning can set you up to make informed decisions about your own estate planning documents.
Last Will and Testament
Generally speaking, most estate planning attorneys are inclined to recommend creating a Last Will and Testament to most of their clients, most of the time, as these legal documents can provide individuals with significantly greater control and flexibility concerning how their possessions will be distributed after their deaths than simply allowing the process of intestate succession to run the course prescribed by the intestacy laws of their state. However, Wills can be especially important for couples who are not legally married, as most state intestacy laws make provisions for surviving spouses but not for unmarried partners. Minn. Rev. Stat. § 524.102 provides for the surviving spouse of a person who has died intestate (without a valid Will) to inherit either the entirety of the decedent’s estate or a substantial portion thereof, depending on whether the deceased person has any surviving children who are not also children of the surviving spouse. Florida’s Probate Code, under Fla. Rev. Stat. (2024) § 732.102, assigns a similar allotment as the “share of the surviving spouse” in cases of intestate succession.
Neither state allows for any portion of an intestate estate to be distributed to a person other than a legal relative until all efforts to locate a qualifying individual have failed – and even then, the property remaining in the decedent’s estate devolves to the state itself, not to any person who was close to the decedent during his or her lifetime. Creating a Will as part of your estate plan helps to avoid an unfortunate situation in which your partner may be forced to watch all of your possessions being parceled away to other parties you may barely have known.
Transfer on Death and Payable on Death Designations
While it is common for individuals preparing their estate plans to prefer working with the advice and support of an experienced attorney who is prepared to help clients ensure that their estate planning documents will meet the requirements for legal validity in their state, there are a few extremely useful steps that even estate planning novices can feel confident taking on their own. Two of these are payable on death (POD) and transfer on death (TOD) designations.
Both types of designations work in the same basic manner: Each of them allows a financial institution to make the assets in a deceased person’s account available to the individual named in the designation upon proof of:
- The account holder’s death
- The identity of the person requesting access
POD accounts are commonly used with monetary assets, such as the savings or checking accounts an individual might have with a bank, while TOD accounts more typically allow for the transfer of financial, but not strictly monetary, assets such as investments and retirement accounts. While account holders can set up the required designations with their respective financial institutions without the assistance of an attorney, a separate designation is usually required for each account, so you may wish to work with an estate planning lawyer from Roulet Law Firm, P.A., to ensure that each eligible account has been identified and updated and that all TOD and POD designations have been taken into consideration in your total estate plan.
Life Insurance Beneficiary Designation
One of the clearest and simplest ways to look after the financial being of someone you love in the event of your own death is to take out a life insurance policy with that person named as the policy’s primary beneficiary. Unlike assets that are left to beneficiaries via a Will, life insurance policy benefits are more like TOD or POD accounts in that they can often be paid to their designated beneficiaries in the first days to weeks after a loved one’s death – long before a Will can make its way through the probate process.
Health Care Surrogate or Medical Power of Attorney
In some instances, unmarried partners may find that they can protect each other by protecting themselves. This can often be the case, for example, with advance directives and related documents related to advance care planning.
Types of Advance Directives
Some advance directives, such as a living will, do not require the nomination of another person; these documents provide instructions directly to the medical team responsible for the care of the person who signs the document. Organ donor selections and documents accepting or declining, in advance, medical interventions such as cardiopulmonary resuscitation (CPR) also fall into this category, which is characterized by the fact that documents in it do not assign decision-making responsibility to any other party.
Another type of advance directive assigns decision-making responsibility to someone other than the person signing the document (often known as the principal), under a pre-specified set of conditions (usually medically-evaluated decision-making incapacity). These documents can go by different names in different states, but generally function in a manner similar to a durable power of attorney that restricts the authority of the agent or “attorney-in-fact” to medical matters. Documents in this category allow their principals to name a trusted person to make medical decisions on their behalf if the person who has made the designation becomes medically incapacitated and is therefore unable to make or communicate important decisions related to their own care.
Options for Preparing Advance Directives in Minnesota and Florida
Both Minnesota and Florida allow the individuals preparing their advance directives to combine their instructions directly to healthcare professionals and their delegations of emergency decision-making authority into a single document. In Minnesota, the combined document is called simply a Health Care Directive. Understood to incorporate both the instructions to healthcare providers encompassed in a living will and the authorization that in Minnesota would otherwise be known as a durable power of attorney for healthcare, this combined document is the form preferred by the Minnesota Board on Aging.
Florida offers a similar set of options, with slightly different terminology. The Florida Agency for Health Care Administration offers downloadable forms for living wills, health care surrogate designations, and donor forms as separate documents, while University of Florida Health offers a combined form that is subject to the same witnessing requirements. National organizations that offer advance care planning resources also sometimes provide state-specific forms; the Cleveland Clinic offers versions of Florida’s Declaration of Living Will, and Designation of Health Care Surrogate that each include an option for the declarant to make a selection regarding their organ donation preferences.
Prepare an Estate Plan as Unique as Your Love
Unmarried partners do not typically enjoy many of the same automatic legal protections as their wedded peers. Taking a mindful approach to estate planning can put these unmarried couples in a position to construct consciously many of the same benefits as legally married spouses. At Roulet Law Firm, P.A., we encourage approaching the estate planning process with intentionality, regardless of your age or marital status, and we take pride in helping clients develop personalized estate plans that reflect their unique values and priorities. Call either of our offices today to set a private consultation to discuss your specific needs and goals. Reach our Minnesota estate planning lawyers at (763) 420-5087 or get in touch with our attorneys in Florida by calling (941) 909-4644. Or you can fill out the contact form on this page and a member of our team will contact you to schedule.
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