This post is the first of a series about estate planning and unmarried couples. By “unmarried couples,” I mean both heterosexual couples who choose not to marry and same sex couples whose unions or marriages are recognized by some states.
Being in a nontraditional relationship presents a number of challenges about which people need to be aware. These challenges vary from state to state but tend to be uniform in the federal context (IRS, social security, veteran’s benefits). The legal challenges stem from the fact that (unless there is marriage, civil union or in Colorado – a designated beneficiaries agreement) the couple are legal strangers to each other, with limited or to-be-determined rights regarding the other or their relationship.
Some financial difficulties include:
1. You have to file your taxes as head of your household, or as a single individual.
2. The state you live in may not provide a divorce-like (palimony or settlement) procedure that gives you your equitable share of assets.
3. You and your partner do not get each other’s Social Security benefits.
4. You may have to sell your house to get long term care benefits under Medicaid. (This is changing, read this for more information.)
5. You must designate your partner as the person to make your decisions if that is what you would like to see happen (by using a medical or financial power of attorney). Otherwise, the state you live in may default to a blood relative to make those decisions. See this news release from the CMS website regarding Medicare’s enforcement of equal visitation.
6. You will want to carefully consider creating a will to get around your state’s intestacy laws in the event they do not recognize your union. Keep in mind that Colorado is one of ten states that recognizes common law marriage, and unmarried couples can execute a designated beneficiaries agreement
7. You are not eligible to receive the transfer of your partner’s exemption like married couples are.
For more information about the financial difficulties, check out Erik Carter’s article “In a Nontraditional Relationship? Beware These 7 Financial Pitfalls,” in Forbes.
The lack of legal and financial protections apply to same sex couples along with unmarried couples who could otherwise get married but have chosen not to get married. Keep in mind that your relationship may seem like a marital one, but just because you behave the same way as a married couple, the law will not treat your relationship with as a marital relationship. It’s best to know these things up front and not be surprised by them!