“Get married? Why?”
As social norms change and outside pressure diminishes, many couples are making the decision to remain unmarried even if they plan to stay together for the rest of their lives. For couples who decide to stay in a long-term relationship without actually getting married, estate planning is one of the most important concerns to address. If they neglect to plan for the worst, their life partners will not inherit from their estate, nor will they get a say in their partner’s end-of-life care.
Instead, Florida state law will decide where the decedent’s assets go, and you can be sure that those assets will not end up with an unmarried partner. For better or worse, these laws were drafted in a different time, and they strongly favor blood relatives and legally married individuals.
If a decedent isn’t married in Florida, their assets automatically go to the closest blood relative. And while you might believe your unmarried partner deserves your estate, your family may not share this sentiment.
The same is true for medical care if one of you is incapacitated and unfit to make medical decisions. You’ll be cut out of the process as blood relatives take over.
What can you do? Plan ahead – and be specific.
Creating a Will. Luckily, a bit of forward planning can prevent this undesirable scenario. If you have assets that you care about that you would like to go to your partner, you can draft a will to make sure your estate ends up where you want it.
If you have a child, writing a will is also critically important. In the event of an untimely death, your will can dictate who the next appointed guardian of your child should be. This is only the case if both parents are deceased. So if you are both legal parents of the child, you will want to pick a different guardian in the event that both of you pass away.
However, if your current partner is not the legal parent of your child, taking action is even more important. In order for him or her to maintain custody without a battle, you need to name your partner as your child’s guardian in your will.
Unless there is a serious problem with the guardian you name in your will, or your child has another legal parent, the courts will honor your desires and appoint your partner to be the guardian of your child. You may also want to include a letter attached to your will, explaining why you feel your life partner would be the best person to take over guardianship.
You may also leave your assets in a living trust, which has the advantage of allowing your life partner to avoid probate. Talk to an experienced, knowledgeable estate attorney to determine whether a will or trust is the right option for you.
Sharing Ownership of Assets. One of the easiest ways to make sure your life partner receives your assets when you die is to set up co-ownership. Houses and cars, for example, can be owned in joint tenancy.
If one partner dies, the surviving partner will receive 100% ownership of the shared property. To establish joint ownership, you can modify your title documents (like the deed of a house or title of a car).
Name Beneficiaries for Accounts. Certain assets you may not be able or willing to share with your partner while alive. Retirement accounts, for example, cannot be co-owned.
Though you might not want to share your bank, investment, or other sort of account with your partner while living, you may still want them to go to your partner when you pass away. Often these accounts cannot be transferred through a will. Instead, you will have to designate a beneficiary directly.
This is a fairly simple process. You can contact the bank, or whoever is the custodian of your account, and ask for a form to designate your beneficiary. If you change your mind after filling out one of these forms, they can also be altered with relative ease.
Make Living Wills and a Durable Power of Attorney. These documents will allow your life partner to take over important decisions in the event you become sick or otherwise unable to make these decisions yourself.
A Durable Power of Attorney allows your partner to make judgment calls for your financial affairs. A Health Care Power of Attorney lets your partner make decisions about medical affairs. If you’d like to learn more, read about living wills and Health Care Power of Attorney documents here.
The bottom line is that estate planning can be a complicated affair – especially when you decide not to live in a “traditional” manner clearly covered by existing laws. Contact us today for expert consultation on Florida estate law, wills, and trusts.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.