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Estate Planning for Unmarried Couples

Many traditional rights having to do with health care, taxes, and inheritance do not apply to unmarried couples, making estate planning even more important.
July 8, 2024
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I have been in a long-term relationship for 20 years but we are not married. Do I have any legal rights over the estate of my partner?

The short answer is no, New York State law does not give legal status based on the length of the relationship.  As the rise of the “unmarried couple” continues, so does the need for unique estate planning for this modern family dynamic. Estate planning for long-term partnerships is just as important, if not more so, than for married couples. Many traditional rights or benefits having to do with health care, taxes, and inheritance do not apply to an unmarried couple. It is therefore imperative to properly plan for these scenarios.

Under New York’s Family Health Care Decisions Act (FHCDA), a family member, close friend or domestic partner, can make health care decisions for you if you are in a facility and unable to do so yourself.  However, there is an order of priority as to whom can make these decisions, a close friend or domestic partner being last on the list.  Because many couples prefer their partner to be the primary decision maker in the event of incapacity, executing a Health Care Proxy naming the partner as agent will override this law and allow the partner to be empowered to make health care decisions.

Another consideration is probate at death. Even with a last will and testament, when a person dies with assets in their sole name the nominated executor must file a probate petition with the Surrogate’s Court before having the authority to act. Notice of probate is given to the decedent’s next-of-kin, even if they are not included as beneficiaries in the Will. Under this scenario, consideration should be given to who the next-of-kin are; we all have them.  For example, if the Will gives all assets to the unmarried partner and the decedent also has two children, the children will be sent a notice of probate and are given the opportunity to contest the Will. If there is a concern that the next-of-kin will object to the partner inheriting, using probate avoidance tactics, including trusts, will greatly benefit the surviving partner.

The result is even worse if the intention is for assets to go to the partner and someone dies without a Will.  In that case, New York has default laws of intestacy, as governed under the New York Estates, Powers and Trusts Law (EPTL), which dictate what happens to the distribution and inheritance of assets.  In that case, if a decedent is survived by their long-term partner and 3 siblings, all assets will pass to the decedent’s siblings and the partner will be left out completely. Proper planning can ensure the intended beneficiary receives the assets.

These are just some of the many reasons why having an estate plan matters.  The plan should take into account the assets that you have and the relationships between you, your family members, and all other beneficiaries of your estate, especially if it is a partner.  It is important to meet with an estate planning attorney to discuss your specific goals and come up with a creative way to accomplish those goals by using the right estate planning tools that will produce the best outcome.

Author: Michal Lipshitz, Esq.