Unmarried Couples Need Estate Planning Too

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September 21, 2023 •  The Estate & Elder Law Center of Southside Virginia, PLLC
Unmarried couples don’t receive the same legal protections as married couples when it comes to inheritance and taxes.
Robert W. Haley, managing lawyer
Robert W. Haley
Certified Elder Law Attorney® Robert W. Haley brings over 27 years of legal expertise and knowledge to his firm, which concentrates solely on the areas of elder law, estate planning (Last Will & Testaments, Durable Powers of Attorney, Health Care Powers of Attorney, Living Wills, Trusts, etc.,.) Asset Protection/Medicaid Planning and fiduciary services. For many years, Robert practiced in real estate law, and in general practice, but decided to narrow his focus to elder law and estate planning when he realized the tremendous need for proper planning to be filled in Southside Virginia.

Unmarried Lynchburg couples must engage in estate planning because, without proper planning, their partner may be left with nothing when the first partner dies. Details of protecting partners are explained in a recent article, “BUSINESS: Unmarried Couples and Estate Planning,” from The Item.

Unmarried Partners Have No Protections for Inheritance

For married couples, the spouse is usually the first to inherit, followed by children, parents, siblings, and other relatives, depending on who is still living. However, for Lynchburg residents living in a domestic partnership with no legal plans for what should happen with one's property after passing away, the partner receives nothing and has no legal claim or ownership rights of their partner's estate.  In fact, Virginia law does not provide for civil unions or domestic partnerships, and thus unmarried partners do not enjoy the legal rights of married spouses.

Another potential problems are assets like life insurance policies and retirement accounts that could go to the estate if no designated beneficiary is named. This could lead to probate, a complicated and costly legal process where the court decides how assets should be distributed.

To avoid these and many other problems, having an estate plan to take care of your partner is best. This includes making a Will, naming beneficiaries for life insurance and retirement accounts and clearly stating your intentions in legally enforceable documents. This protects your partner’s rights and ensures your assets are distributed according to your wishes.

Domestic Partnerships Miss Out on Tax Advantages

Married partners have the advantage of gifts, as they can give each other unlimited amounts of money or property without worrying about gift tax. However, there are limits to how much unmarried partners may give without facing gift tax exclusions, also known as the annual exclusion.

If you gift your partner more than the annual exclusion amount in a year, you must file a federal gift tax return and report the excess amount. The rules for federal estate tax are quite similar to the gift tax rules.

When married people die, they may leave an unlimited amount of money and property to each other without worrying about federal estate tax. However, any money or property left to an unmarried partner will count towards your lifetime exclusion amount.

Once this exclusion amount is exceeded, an estate tax will be due when the giver passes away. In 2023, the lifetime gift and estate tax exemption is $12.92 million, and the annual exclusion is $17,000. This amount will change over time because of inflation.

Protecting Your Partner's Decision-Making Ability

There are also personal matters to think about. You’ll want to designate someone to handle financial and legal transactions and make medical decisions on your behalf if you cannot do so.  The legal document that designates the individual to make medical and financial decisions on your behalf is known as a Power of Attorney.  For most people, choosing a spouse or partner as the first agent, or decision-maker, is the most likely choice.  If you don’t choose a trusted person for these roles and have the appropriate documents created, your partner may not be included in these decisions and will have no legal authority to make decisions for you. If you don’t have a good relationship with your family, this could create a situation where your partner is shunted aside.

Estate Planning Solutions for Unmarried Partners

What can you do? Meet with Lynchburg Experienced Estate Planning Attorney Robert W. Haley and create a Will to protect your wishes after you pass. Have a Power of Attorney and Medical Power of Attorney created, so your partner can make decisions on your behalf if you become incapacitated. Doublecheck your beneficiary designations to be sure the person who will receive proceeds from your life insurance and retirement accounts is the person you want. If you own a home together, talk with your estate planning attorney to plan for what will happen if one of you needs long-term care or predeceases the other. Schedule a call with our firm to discuss more planning you can do now for your domestic partnership.

Read more about working with our firm in the article: Client Solutions, Not Just Documents: Are You A Good Fit To Work With Us?

Reference: The Item (Aug. 26, 2023) “BUSINESS: Unmarried Couples and Estate Planning”

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