This column first appeared in the San Antonio Express News and other Hearst Newspapers on December 4, 2020.
Dear Mr. Premack: I am not married, and I don’t have any children. I do have a long-term intimate relationship with my significant other. We have lived together in my house for the last fifteen years. We don’t pretend that we’re married, and we do tell people who ask that we are not married. I want to plan ahead to leave this house and my savings to her when I die. My main concern is that I have two brothers who don’t approve of my lifestyle and don’t like my significant other. What legal planning can I do to protect her from my brothers when I die? – C.H.
Your intimate relationship and living arrangement may have caused some gossip decades ago, but statistics show that your choice is now quite common. According to the US Census Bureau , about 18 million people in the US reside together as unmarried couples, representing about 7.4% of the population. That is up from about 0.5% of the population in 1967. Attitudes and practices have changed, and the senior community (65+) has nearly tripled its rate of unmarried cohabitation in the last 25 years.
Before we focus on protecting your partner’s inheritance, let’s add to your question as follows: how do you make sure your partner can take care of you if/when you become ill or incapacitated? How do you make sure you can take care of your partner, without legal interference from other unwelcome family members? You don’t mention if your partner has adult children, but if she does then she needs to plan to avoid conflicts between them and you.
Each of you need to discuss with your qualified estate planning attorney the idea of signing Durable Powers of Attorney for financial matters, and Medical Powers of Attorney for interactions with the doctor, and HIPAA authorizations to allow medical providers to disclose private health information. Properly naming each other as Agents for these purposes (with suitable alternate Agents if you are both ill) solves a lot of issues.
Even if you sign the right powers of attorney, you need to block your family from unwanted interference in court. Your partner has no automatic legal right to be appointed Guardian over you if you are incapacitated, but family members do have those legal rights. State law allows you to control Guardianship by signing a lawyer-prepared “Declaration of Guardian” specifying your approved selection for your Guardian if the need arises. The Declaration of Guardian also allows you to disqualify anyone who you feel may try to impose themselves on you.
As to the inheritance, you need a lawyer-prepared Will naming your partner as your sole heir. Building from that foundation, you may also desire to create non-testamentary (non-probate) agreements that will automatically transfer assets to your partner when you die. This might include a Living Trust, Pay on Death designations, and granting a remainder interest in your home while retaining life estate.
These non-probate transfers may help avoid court challenges when you die. In the recent case Estate of Grogan (decided in 2020 in Texarkana’s appeals court) Mr. Grogan willed his entire estate to his partner. His siblings sued her, claiming the Will was invalid because she had exercised undue influence over Grogan’s choices. The trial court found there was no evidence Grogan’s arm had been twisted, but the siblings appealed, costing more time and money. The appeals court concluded the siblings were merely upset at being excluded and upheld the trial court’s ruling. The partner won but had to fight a protracted, expensive court battle which could have been avoided with proper legal estate planning.
It is also important to recognize that some people who reside together do NOT want to give their estates to each other, do NOT want to be responsible for each other, and do NOT want to create the impression that they intend to be viewed by outsiders as a married couple. They also need legal documentation, including a written Cohabitation Agreement specifying their legal positions, and agreeing not to make claims against each other’s estates.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.