Question: I have been living with my partner for the last 25 years. While I want to provide for him in my estate plan, I want to be sure when we are both deceased, my assets pass to my children from my first marriage. Can this be accomplished?
Answer: For the single individual who is living with another person but is unmarried, planning can be done to specifically provide for that partner, if so desired. It is important to recognize that partners are not given rights to property the way spouses are. Even if a person has resided with another for decades, without proper estate planning, that partner will not be entitled to assets of the decedent.
Having a Will which designates a partner as the beneficiary of the estate can ensure that property passes to the partner; however in order for the Will to be carried out, it must go through Probate. In New York, the Probate process includes notifying and obtaining the consent of the decedent’s heirs. For instance, if a single individual with children dies, the children are the parties entitled to notice of the proceeding. If the children do not consent, they have the opportunity to present objections to the Will which leaves assets to the partner. If their objections are successful, the Will is invalidated and the law of intestacy prevails which assumes the deceased person would have wanted their estate to be distributed to their children, and not their partner. Moreover, if your Will gives assets to your partner outright, those assets become part of your partner’s estate and will not necessarily be distributed to your children unless he includes your children in his estate plan.
The best technique for implementing a plan which avoids objections and ensures the remaining assets are preserved for your children is to use a trust. Trusts can hold assets for the lifetime of the partner, but distribute the assets to your children after the partner’s death. Trusts also avoid probate so that potential contests are avoided. Depending on the type of trust utilized, trusts can also protect assets in case either partner needs Medicaid to pay for their long term care whether it be care in a nursing home facility or aid services at home.
In addition to the foregoing considerations regarding leaving assets at death, it is equally important to remember that partners do not have rights to make decisions during your life without proper planning. An estate plan is not complete without comprehensive advance directives which allow loved ones to make healthcare and financial decisions for you if you are incapacitated.