Estate planning is important for everyone. We simply don’t know when something tragic could happen such as sudden death or an accident that could leave us incapacitated. With proper planning, families who are dealing with the unexpected experience fewer headaches and less expense associated with managing affairs after incapacity or administering an estate after death.
If a person fails to do any planning and becomes involved in a debilitating accident or passes away, each state has laws that govern who will inherit assets, become guardians of minor children, make medical decisions for an incapacitated person, dispose of a person’s remains, visit the person in the hospital, and more. In some states, the spouse and any children are given top priority for inheritance rights. In the case of incapacity, spouses are normally granted guardianship over incapacitated spouse, though this requires a lengthy and expensive guardianship proceeding.
Today, many couples are choosing to spend their lives together but aren’t getting married for a number of reasons. However, most states don’t recognize unmarried partners as spouses. From a legal standpoint unmarried partners are often treated as strangers – a partner will not inherit from the other, will not be appointed as a guardian or Personal Representative of the estate, will not be able to visit the hospital or make care decisions. In order to be given legal rights that married couples often receive automatically, unmarried couples need to do special planning in order to protect each other.
In general, unmarried individuals need three basic documents to ensure their rights are protected:
- Will – A will tells who should inherit your property when you pass away, who you want your Personal Representative to be, and who will become guardians of any minor children. These issues are all especially important for unmarried individuals. In most states, an unmarried partner does not have inheritance rights, so any property owned by his or her deceased partner would go to other family members. Also, the living partner may not necessarily be the biological or adoptive parent of any minor children, which could lead to custody disputes in an already very difficult time. Therefore, it’s critical to nominate guardians for minor children.
- Power of Attorney – A power of attorney (for financial matters) dictates who is authorized to manage your financial affairs in the event you become incapacitated. Otherwise, it can be very difficult or impossible for the non-disabled partner to manage the disabled partner’s affairs without going through a lengthy guardianship or conservatorship proceeding.
- Health Care Directives – A power of attorney for healthcare, informs caregivers as to who is responsible for making healthcare decisions for someone in the event that a person cannot make them for himself, such as in the event of a serious accident or a condition like dementia. Another document, called a living will, provides directions on life support issues. In Minnesota these documents are combined in a Health Care Directive.
In the end, it’s imperative that unmarried couples establish proper planning to avoid undue hardship, expense and aggravation.