Estate Planning for Unmarried Couples

By Steve W. Ledbetter, ESQ.

There are many reasons why a committed couple in a loving relationship might choose not to get married. We strongly recommend that unmarried couples consider the implications of Estate Planning to ensure that their wishes are fulfilled with regards to their testamentary documents. It is also important to consider fiduciary appointments for managing assets and health care in the event of incapacity.

We find it imperative that our clients have updated and state-specific (Florida) advanced directives in case of incapacity, including living will, designation of health care surrogate, HIPPA release, and durable power of attorney in addition to their testamentary documents like a last will and testament or revocable living trust. Here are some high-level notes on the foregoing documents that unmarried couples should consider:

• Last Will & Testament - A legal document in which a person expresses their wishes as to how their assets (including property, cash, jewelry, and possessions) will be distributed upon their death.  The testator names a personal representative to manage the estate.  A Will does not prevent Probate.
• Revocable Living Trust – Commonly used to avoid the court process of probate after death. A Revocable Living Trust is a testamentary document similar to a Last Will & Testament that allows you to specify how and to whom you would like your assets distributed.  Having a trust can also enable you to avoid the extended delays in probate caused by a lengthy judicial process, the exorbitant costs associated with probate, and maintain a level of privacy for your family and beneficiaries. 
• Living Will - A legal document telling doctors and medical facilities the actions you want regarding artificially prolonging your life when you are in a terminal, vegetative, or end of life condition. 
• Health Care Surrogate – The tool by which you appoint an agent, called your “surrogate” to make medical decisions for you if you are unable.  To avoid issues, it is wise to appoint multiple people, but often not at the same time.
• Durable Power of Attorney – This is the legal document allowing you to appoint an agent to handle financial transactions, bill pay, contracts, real property, intangible property, and similar matters on your behalf.  NOTE: there are specific legal procedures to revoke a Durable Power of Attorney; please call us to make changes properly – including recording in the public records and service via formal notice on the ex-agent. 
• Homestead Trust – A specific trust used to provide a mechanism for couples to provide for each other while simultaneously protecting the equity in a home for future distribution to their family or beneficiaries.  This document also preserves the homestead qualities of real property, including the homestead property tax exemption and the protection from claims of creditors.
• Designation of Agent for Disposition of Remains – Florida statue provides that the “next of kin” have authority over the remains of a decedent.  If you want to appointment someone other than your child/sibling/parent/spouse, this document is the tool to accomplish your goals.
• Designation of Preneed Guardian – An unmarried significant other has no rights – i.e., is not an “interested party” – in a guardianship proceeding.  This document allows you to communicate with the courts, as needed, to indicate your preference for a guardian if future events indicate such a need.