These days, cohabitation is becoming more and more common. For several reasons, people avoid getting married or see cohabitation as a previous step toward marriage. Either way, that situation brings some issues when it comes to inheritance.
What happens when one of the partners dies? Before answering that, let’s talk about common-law marriage and intestacy. Meanwhile, please note that a will, a trust, or other legal arrangements, can safeguard your partner’s legal rights and yours.
What is cohabitation?
According to the dictionary, cohabitation is a complex word from the Latin cohabitare. It is formed by co-, meaning ‘together’, and –habitare, which means ‘dwell’. Because of its nature, it is challenging to determine when cohabitation starts.
Yet, per Connell at 834, quoting Lindsey at 331, the Washington court suggests judges consider the following factors, among others, to determine whether a couple fits into a cohabitant regime:
- Continuous cohabitation.
- Duration of the relationship.
- Purpose of the relationship.
- Pooling of resources and services for joint projects.
- The intent of the parties.
Cohabitation is an agreement between 2 or more people to coexist intimately and be economically interdependent. Because of the nature of this arrangement, rights that come naturally to community property (marriage and civil unions) are not present in cohabitation or common-law marriage.
If one of the partners dies, you won’t be granted the same rights as in a marriage contract. The reason behind this is the way intestacy works.
How does inheritance work?
In marriages and civil unions, when one of the spouses dies, the other inherits everything within community property.
When there are children, the surviving spouse inherits all the community property and half of the separate property. Your children will inherit the other half of the property.
When you are married with no children, your spouse will get all the community property and three-quarters of the separate property. Your parents will receive the rest. If you don’t have parents but siblings, they will inherit one-quarter of the property instead.
This occurs when there are no joint tenancies, wills, or trusts. Moreover, these assets are not subject to instate succession:
- Assets declared in living trusts.
- Life insurance.
- Any retirement arrangement.
- Payable-on-death bank accounts.
- Securities in a transfer-on-death bank account.
When you are single, in the eye of the law, your property will go to your children, parents, or siblings but not your partner.
Without a will, a trust, or a joint tenant, there is no protection for your partner’s rights.
What are unmarried couples entitled to?
Unfortunately, partners in cohabitation are not protected by the law when one of them dies. The best you can do for your partner, and children, assuming you don’t want to get married, is to go through an end-of-life planning process.
By doing that, you will get a chance to decide beforehand what will happen to your property if you die. The process can be overwhelming, but it doesn’t have to be. As a checklist, all you have to do is:
- List all relevant documents.
- Meditate about your care.
- Think about your possessions.
- Decide how you will handle your legacy.
- Share your wishes on funeral arrangements.
What can you do to protect your partner in cohabitation legally?
As said before, an end of life planning can guarantee your partner’s rights as if you were married. There are certain benefits for your partner when you are married. Yet, if you insist on not getting married, you can still arrange certain documents to protect your partner.
Through a contract or several contracts, you can establish what happens legally if you get injured or sick and can’t talk or decide on your own, how your property is distributed when the time comes, among other things. Oral agreements also work, but they are hard to prove.
Because joint tenancies come into place just after one of the co-proprietary dies, even when I will, or trust exists, you may consider this option. Naturally, you can always decide upon wills and trusts or both based on your situation.
You may also want to name your partner your guardian to make sure they will care for you and make medical decisions for you. Talking about medical care, you will also want to draft a living will to make decisions about life-prolonging treatments and other related issues.
Lastly, consider providing durable power of attorney to your partner so that you can legally support each other. This way, you can ensure you won’t be left without anything in case things won’t go as planned or expected.
In summary
Common-law marriages are not entitled to inheritance. Yet, you can prepare certain documents to cover your partner and your children.
Joint tenancy, wills, trust, and other legal documents, come with certain particularities that an expert attorney can help you handle. Are you worried about your partner and children’s future? Call us today! We are looking forward to hearing from you.
