Why Unmarried Partners Should Care about Estate Planning
Department Chair: Eric Gurgold, Esq.
According to a 2019 survey conducted by the Pew Research Center, seven percent of surveyed adults were living with an unmarried partner, up from three percent in 1995. More and more people are entering long-term committed relationships without getting married. Unfortunately, state and federal laws do not protect unmarried couples as they do married couples when it comes to inheritance, taxes, and decision-making powers. Therefore, it is vitally important that unmarried couples engage in comprehensive financial and estate planning because without proper planning, your beloved partner could end up with nothing should you pass away.
The Law Is Not on Your Side
If you do no estate planning, your state’s intestacy statute will determine who will receive your money and property and the amount each legal heir will receive. Intestacy laws vary by state, but generally speaking, your money and property will go first to your surviving spouse if you are married, then to your descendants (children or grandchildren), your parents, your siblings, and your siblings’ children, in that order, depending on who survives you. If you had intended to provide something to your partner but failed to plan before your death, your partner will receive nothing under the law; in fact, unmarried partners are not mentioned at all in intestacy statutes.
If you have a life insurance policy and fail to complete the beneficiary designation form, the proceeds from the policy may be paid to your estate, necessitating the costly and time-consuming probate process, the court-supervised procedure that must take place to distribute to your named beneficiaries (or if you don’t have a will, your next of kin) the accounts and property you own at your death. On the other hand, the proceeds may go to individuals according to the order outlined in the policy agreement. In many cases, the listed people will be your family members, not your partner. Similarly, if your retirement account does not have a named beneficiary, that account may also end up going through probate, which may cause unintended income tax consequences and distribution according to the default rules of the account agreement.
A Different Kind of “Blended Family” Concern
In most cases, when we refer to blended families, we mean someone who remarries and has children from a previous relationship. In that instance, the planning objective is to make sure that the children from the previous relationship are not completely disinherited because, in many situations, the new spouse’s claim to the deceased’s money and property has priority. However, if you have children from a previous relationship but are not married to your partner, the concern becomes protecting your partner who, under the law, would not be entitled to anything because your children would more than likely receive everything.
Federal Tax Issues
When both married partners are US citizens, each can give the other an unlimited amount of money or property during their lifetime without worrying about the federal gift tax. Unmarried partners who are both US citizens are not afforded the same consideration. Therefore, you can give only up to the annual exclusion amount to your partner without having to consider the gift tax consequences. The annual exclusion amount for 2021 is $15,000 and is adjusted periodically for inflation. Should you decide to give your partner more than the annual exclusion amount, you will need to file a federal gift tax return to report the excess. On the bright side, federal gift tax is not due until you have made gifts totaling more than the individual estate and gift tax exclusion amount, which is $11.7 million for 2021.
Federal estate tax rules are similar to gift tax rules. Married partners are allowed to leave to each other at death an unlimited amount of money and property free of federal estate tax. However, if you and your partner are not married, any money or property you leave to your partner counts towards the $11.7 million lifetime exclusion amount. Once the exclusion amount has been exceeded, an estate tax is due when the giver dies. If your lifetime taxable gifts (those over the annual amount each year) and the amount of money or property transferred at death exceed the lifetime exclusion amount, an estate tax will be due.
Although the financial aspects of estate planning may be enough to motivate you to plan, there are also important personal matters to consider, including who will handle financial transactions on your behalf and who will communicate or make medical decisions for you if you are unable. If you do not name trusted individuals to handle your financial and medical affairs, the state will apply its own order of priority and appoint someone. Depending on the state statute, your partner may not be on the list or may have a lower priority than your blood relatives. This situation can be incredibly messy if your relationship with your family is poor or you would not otherwise trust them to make decisions for you.
Actions to Take Now
If protecting your partner is important to you, you may wish to consider the following steps:
- Review your beneficiary designations. Remember, they must be filled out correctly and properly submitted to be effective.
- Review how your accounts and property are owned. Living together in your house does not mean you both own it, nor does simply helping with mortgage payments. In addition, it is important to know who has access to the account used for household expenses so the healthy partner can continue paying the bills if one of you becomes incapacitated or passes away.
- If you do own a home or other real estate together, consider a joint ownership agreement to protect both of you should there ever be a disagreement over how to handle things.
A comprehensive estate plan should address who will receive your money and property at your death, who will make financial and medical decisions for you if you cannot, and outline your end-of-life wishes. Whether you have an existing estate plan or need help with taking the next steps to protect the future for yourself and your partner, I may be reached at email@example.com or by phone at 239-344-1162. Virtual appointments are available.