Illinois Estate Planning and Elder Law Blog
Maggie Kirchhoff, a certified financial planner with Business & Personal Finance in Denver, has been with her partner, Matt, for 13 years. The two do not plan to ever get married, and they know this means they won’t get the same automatic rights and protections that those who are legally married get, especially when it comes to death.
“A lot of spousal rights are inherent with a marriage certificate,” says Kirchhoff. “For unmarried couples, though, you have to make a concerted effort to cover all your bases.”
The number of unmarried couples who live together was at 18 million in 2016, up 29% from 14 million in 2007, according to the Pew Research Center. Among those age 50 and older, this increase was 75%: About 4 million were cohabiting in 2016, up from 2.3 million in 2007.
Although the arrangement has become more widely accepted, according to a separate Pew Research report, unmarried couples still face many key differences compared to those who are legally wed – such as not being able to file a federal tax return as a couple. Additionally, if your partner is covered by your company’s health insurance, the amount your company contributes is taxable to you.
About five years into their relationship, Kirchhoff and her partner signed several documents that will dictate what happens if one of them either becomes incapacitated or passes away, creating an estate plan.
The Basics
“Estate” simply refers to everything you own – your financial accounts, real estate, and your belongings.
Experts say that creating a plan for your estate — no matter how big or small your assets — is key for unmarried couples who want their commitment to each other protected in the event of death.
“If I’m married and die without an estate plan, it would be a mess, but the general default would be that everything ends up with my spouse,” said Nick Rosenbauer, an estate planning attorney and founder of the Rosenbauer Law Office in West Chester, Ohio. “But if I’m not married, the default wouldn’t be my partner. It might be my kids or my parents or siblings, but my partner who isn’t legally my spouse would be out of the picture.”
If you die intestate (meaning without a will) the courts in your state will decide who gets what you leave behind. That process is public and can become messy.
However, creating a will probably won’t cover all of your needs.
Retirement Accounts
You’ll want to be sure your partner is the named beneficiary on tax-advantaged retirement accounts if you want them to go to your partner. Even if it’s written in your will, those listed as the beneficiaries on those accounts will get the money. (The same is true for insurance policies and annuities.)
If no beneficiary is listed, the retirement plan agreement and the state law will determine where it goes – usually it will be included in your assets and subject to probate.
Bank and Brokerage Accounts
Although there would be no problem for one of you to access checking, savings, or investment accounts if both names are on the account, this isn’t the case if only one name is on the account. You’ll need to contact your bank to see what form needs to be filled out for the money to be left directly to your partner.
“You’d either want to add what’s called a transfer-on-death or payable-on-death designation,” Kirchhoff said.
Again, without those designations, the assets would end up in probate.
The Family House
No matter how you split the mortgage or whose names are on the loan, the name on the deed is the homeowner.
“If the house is in one person’s name, it won’t automatically pass to the partner,” Kirchhoff said. “It would become part of the probate estate.”
Consider having both of you named as joint owners on the deed, “with rights of survivorship.” Typically, in this case, you each equally own the house and can assume full ownership when the other passes away. There are many factors to consider in doing this though, so you may want to consult a professional.
Another option is to leave the house to your partner in your will. Keep in mind, though, any asset passed on through your will is subject to probate and its potential complications.
Consider a Trust
Depending on your financial situation, a trust might be a good way to make sure your partner ends up with what you want them to without it being subject to probate. However, it’s important to determine if it would make sense tax-wise and if it’s worth the cost (which can be several thousand dollars).
Communication
It’s worth letting your family members know the general intentions included in your estate plan. While it isn’t necessary to go into dollar amounts, it can be helpful to manage expectations for your partner and other family members.
“I always recommend that clients discuss these plans with family to avoid hurt feelings or missed expectations,” said Eric Walters, a CFP and managing partner and founder of SilverCrest Wealth Planning in Greenwood Village, Colorado.
Other Considerations
Typically, your partner has no legal say in your medical treatment if you are unable to make decisions for yourself. However, you can give the person that right by giving them a durable power of attorney over health care.
This is separate from a living will, which states your wishes if you are on life support or suffer from a terminal condition. This helps in guiding your proxy’s decision-making and guides medical personnel if no one has been named.
You may also want to give your partner durable power of attorney for your finances, allowing them to handle your money and access your accounts as necessary if you are unable to.
Kirchhoff also recommends putting contingent decision-makers on those documents. “If there’s a likelihood that you and your partner are going to be traveling together, and something were to happen to both of you, then who’s in charge?” she says.
Finally, if you and your partner have dependents, make sure you have a guardian designated in your will. Otherwise, the courts will make that decision for you.
For assistance creating or updating you and your partner’s estate plan, contact us at Wilson and Wilson Estate Planning and Elder Law, LLC, 708-482-7090 or wwilson@wilsonwilsonllc.com