What Rights Do Unmarried Couples Have and Is Estate Planning a Substitute For Not Getting Hitched?
Updated: Feb 13
Long term relationships without legal marriage have been happening forever - think Goldie Hawn and Kurt Russell, Anna Kournikova and Enrique Iglesias, Eva Mendes and Ryan Gosling and the list goes on.
More and more, being in a committed relationship where two people share their lives, their income and assets, and their children, is sometimes more than enough. Understandably, some people find that the commitment is the most important thing and that a piece of paper matters not when it comes to staying and being together. In a committed long-term relationship, couples tend to know each other very well, and they’ve probably had plenty of talks of what each person would want to happen in case one of them becomes seriously ill or eventually, when one of them passes away.
But in the eyes of the law, unmarried couples are considered “legal strangers,” meaning that if one of them suffers an incapacitating illness or injury, or passes away, the other person would have no legal rights to anything the other person owns, including decision-making authority. Imagine being in a situation where in the midst of a major emergency or crisis, the one person who knows you best and with whom you’ve spent your life is blocked from doing anything for you, and in many cases, even visiting you when you need them most. What if your person's family doesn't approve or they have been estranged from their family members? Will anyone understand the more intricate and personal dynamics of your story? Scary.
So, to avoid this scary scene, what options exist for two people who have decided to spend their lives together but not necessarily in marriage?
While estate planning is not a one-size-fits-all answer for granting to unmarried couples all the rights that married couples have, it goes a VERY long way in addressing and avoiding that disaster scenario of suddenly having no ability to tend to the needs of the ones we love the most.
For starters, anyone over the age of 18 should really have a document that gives another trusted individual the legal authority to help them in case of a medical crisis. This is known as an Advance Health Care Directive, or sometimes it is referred to as a Medical Power of Attorney or designating a Health Care Agent. If you’ve ever had a planned surgery, even if it's a routine, outpatient procedure, and any form of anesthesia is given, your health care provider may ask you to sign one, just in case you have an allergic reaction to the medication or something else unforeseen comes up. Having a Directive is not just useful for illnesses and routine surgeries, but also you might find that you’ll be traveling soon, or you have a job that’s a bit physically risky or you play a rigorous contact sport. These are all excellent reasons to map out exactly who can speak for you in case you’re not able to speak for yourself. It enables your trusted agent to talk to doctors, receive health updates on your condition and progress, and handle a variety of things like organizing treatments, coordinating for care facilities and temporary or long-term living arrangements, scheduling appointments, medication decisions and so much more.
Another important reason to have a Directive is to let your trusted people and loved ones know what your specific wishes are. Many people find themselves in the position of having to respond to a medical crisis for another person and realize they have no idea of what their person would want them to do under the circumstances. Their only option is to scramble to find the answers or make a best guess attempt. It's a terrible feeling and a stress to be forced to make tough decisions because you simply don't know what to do.
Getting an Advance Health Care Directive is just one smart move to help our unmarried better halves and loved ones understand how we’d want them to care for us in case something happens. There are plenty of other planning strategies that work hand in hand to address some of the legal challenges that unmarried couples will face during incapacity or death. These may include handling of business affairs, residences, custody and guardianship of shared children, division of assets, etc. The best thing to do is to talk to a lawyer who handles estate planning to find out how to address all of these concerns and make sure that you secure a blueprint of decisions that will make things easier for you and your loved ones.