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Estate Planning for Unmarried Couples

Estate Planning Attorney in Burlingame

Estate planning, and by extension the subject of death, can be a subject that makes most adults uncomfortable. Estate planning requires adults to confront their own mortality, as well as facing certain other common fears. There may be a fear of making mistakes when planning one’s final estate, a fear of hurting feelings when designating beneficiaries, a fear of not understanding the estate planning process, and an overall fear of the unknown. 

It is important to work through these issues in order to ensure your assets go to the person of your choice, rather than leaving these decisions to the state of California. Estate planning for unmarried couples can have particular significance; without some level of estate planning, neither of you—no matter how long you’ve been together—will inherit from the other, and neither of you will have a say in the other’s end-of-life medical care. There is no “common-law” marriage in California. The Law Office of Mark Gullotta understands the specific issues associated with estate planning for unmarried couples and will work hand-in-hand with you to create a flexible estate plan which will grow with your family. 

Census Reports Show a Significant Increase in Unmarried Couples Living Together

According to census.gov, unmarried couples who live together are more common to some age groups than others. In fact, among those between the ages of 18 and 24, about 9 percent lived with an unmarried partner in 2018, compared to 7 percent who lived with a spouse. Among young adults between the ages of 25 and 34, 15 percent were living with an unmarried partner in 2018—a 12 percent increase from a decade ago. 

These numbers are definitely a sign of the times—fifty years ago, unmarried couples living together were relatively rare, with only 0.1 percent of unmarried 18-24-year-olds living together, and 0.2 percent of 25-34-year-olds living together. While about 30 percent of those between the ages of 18 and 34 are married today, four decades ago, nearly 60 percent of the same age group were married.

According to Advance Capital Management, estate planning is not something most Americans want to think about; fifty-five percent of all Americans will die without a will or an estate plan of any kind. Older Americans are, predictably, the most likely to have an estate plan, or at least a will, with about 50 percent of those over 65 having an up-to-date will. Those older than 72 are the most likely to have designated an advance healthcare directive compared to younger individuals. While older Americans are doing better overall in estate planning tasks, a full one-third of seniors have not discussed later-life or end-of-life plans with family members, and 32 percent have not even informed family members where they can find legal, medical and financial documents.

While you might think that wealthier Americans are more likely to have an estate plan than the less-well-off, this is not entirely true. While ten percent of Americans who earn between $100,000 and $150,000 have an up-to-date will, only 15 percent of those who earn more than $150,000 have an up-to-date will. You may wonder why all these people are without an estate plan. Nearly half of all those without an estate plan claim lack of time—they simply have not gotten around to it. Almost a third believe they do not have sufficient assets to warrant an estate plan, and more than half claim it is difficult to find a trusted advisor to create their estate plan. Perhaps most telling is the fact that almost three-quarters of all Americans believe estate planning is “confusing.”

    What Happens to Your Partner if You Die Without a Will?

    Most every adult has at least some assets—the erroneous belief that only the wealthy have estate plans is one more reason many adults fail to provide for their loved ones via a comprehensive estate plan. At a bare minimum, you should have a will that designates who you want to receive your assets. If you do not have a will, then your partner could be left with nothing following your death, even if you have lived together for decades. Under California intestate succession statutes, if you do not have a will, and you have no children, your assets will be distributed to your parents, rather than your partner.

    The Importance of a Will When There are Minor Children

    If you have minor children, it is essential you have a will that names a guardian for your children. If your partner is the other parent, then he or she is the legal parent, however, you would want to name a guardian in the event you and your partner were in an accident and died together. There could also be a situation where your children do not biologically belong to your partner, yet he or she has been their parent for a significant number of years. Without this guardian designation, the court will appoint a guardian for the children, potentially separating them from the only other person they have ever known as a parent.

    If the children have a biological parent—even one who has essentially been out of the picture for their entire life—the court may send the children to live with this biological parent, leaving the parent they have known (your partner) out of the picture entirely. In addition to naming your partner as the guardian for your children in your will, you might want to consider writing a letter to go with your will, which explains to the court why it is important for your partner to be the children’s guardian. That being said, you should be aware that if there is another legal parent in the picture, that person is likely to have legal parental rights.

    Using a Trust to Leave Assets to One Another

    A trust performs the same function as a will while letting your partner avoid the expense and hassle of probate. A trust can replace a traditional will, and might contain the same assets a will would convey. Some trusts are revocable, while others are irrevocable, so it is important that you determine whether you want the ability to change your trust decisions down the line. Trusts which are designed to benefit unmarried couples are the same as those designed for married couples.


    Jointly Owned Assets

    Another way to ensure your partner receives your assets after your death is to title homes and cars together in joint tenancy with the right of survivorship. If your major assets are titled in this manner, the assets will automatically transfer to your partner upon your death. Other valuable assets—bank accounts, investment accounts, life insurance, and retirement accounts can be left to the person of your choice via a beneficiary designation form from the bank or account custodian. Should you change your mind down the road, you can easily change your beneficiary designation.


    Advance Directive and Durable Powers of Attorney

    An Advance Healthcare Directive (in some states outside of California these are known as a “living will”) is a very important document in your estate plan. This document designates a person—such as your partner—to make medical decisions on your behalf in the event you are incapacitated. A Durable Power of Attorney for Finances can give your partner authority over your financial issues and assets should you become incapacitated.


    The Law Favors Marriage

    In the end, our current laws tend to favor marriage, and should you die without an estate plan, there will be a number of serious issues left for your partner to unravel. What if you are unconscious in the hospital, and your partner wants an update, or the hospital needs consent for a medically necessary procedure? Without a HIPAA waiver, Advance Health Care Directive, or medical power of attorney, your partner will be unable to receive information or make any decisions regarding your care. If you die without a California estate plan, your partner will have no homestead rights, will not be entitled to any of your Social Security benefits, will not be entitled to your assets, and will not even be entitled to receive notification of probate proceedings. To avoid these issues, consider creating an estate plan which does one or more of the following:

    • Re-titles real estate to avoid probate;
    • Appoints your partner as Attorney-in-Fact;
    • Names your partner as the “pay-on-death beneficiary”;
    • Creates a digital estate plan;
    • Designates a guardian for your minor children, and
    • Contains a letter of instruction to your partner.


    How the Law Office of Mark Gullotta Can Help

    Estate planning attorney Mark Gullotta knows that estate planning is not something you can simply “set and forget.” Mark takes a proactive approach to estate planning, which minimizes surprises, giving you a much more predictable estate planning process. You will achieve the desired protection for your loved ones, receiving a flexible estate plan which grows with you and your family in a comfortable, no-pressure atmosphere.

    Mark Gullotta has been an estate planning attorney for more than 17 years—this level of experience guarantees the right estate plan for you and your circumstances. Attorney Mark Gullotta can help those who live in the San Mateo County area, including San Bruno, Millbrae, Burlingame, South San Francisco, Daly City, Colma, and the city of San Mateo. Contact the Law Office of Mark Gullotta today for experienced, knowledgeable estate planning experience. 

    DISCLAIMER: The information provided in this document is not legal advice. No attorney-client relationship is created as a result of this presentation. The content is intended to be a general overview of the subject matter covered and is educational and informational only.

    Do you Even Need a Proactive Estate Planning?

    Not everyone needs Proactive Estate Planning. If your situation is simple – not much property, no children, or no worthy cause, a simple Will can mostly work quite well.

    However, if you do have property, real estate, business, and loved ones, most likely a Proactive Estate Planning will benefit you and your beneficiaries.

    How to find out?

    We offer a free assessment of your situation. The outcome can be one of one of four.

    • You have simple case.  We will refer your to an online service where you can do you Will yourself.
    • You have a very complex case.  We will be happy to refer you to offices who specialize in such complex situations.
    • You have an Estate Plan in place and it is sufficient based on the current Law and your situation.  No changes are needed.
    • You don’t have an Estate Plan but need one, or have one which is not current. You are an ideal candidate for our Proactive Estate Planning Service