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There can be many reasons why a couple that has been together for years may decide not to get married.  About 9% of U.S adults aged 25-54 cohabitate with their partner but are not married.  The percentage of married people in the same age bracket has fallen from 67% to 53% since 1990.  Perhaps there are legal, professional, or financial obstacles? Regardless of the reason, the decision to remain together while not getting married is ultimately a personal one.  It is true, however, that unmarried couples do not enjoy all of the same benefits that married couples do.

Creating an estate plan is important for unmarried couples because an estate plan can help unmarried couples enjoy some benefits that come easier to married couples.  A well-thought-out estate plan will allow unmarried couples to inherit from, and care for, one another.  The decision not to get married is between you and your partner.  Do not let that decision preclude the both of you from enjoying some of the benefits that married couples do.

Common Law Marriage

In some states, unmarried couples who cohabitate may legally acquire the same rights and benefits as married couples.  This concept is called common law marriage.  While the requirements to qualify for a common law marriage vary from state to state, the requirements often revolve around living together for a certain period of time, assuming mutual responsibilities as married people do, and having an outward appearance of being a married couple in a way that could lead others to believe you are indeed married.

Unfortunately, New Jersey does not grant common law marriages for couples in the state.  The only time New Jersey will recognize a common law marriage is when a couple legally obtains a common law marriage in another state and then relocates to New Jersey.  The couple must have been living in that other state at the time to have successfully obtained a common law marriage.  Article IV of the U.S. Constitution provides that each state must give “full faith and credit” to the judicial proceedings of other states.  If you and your partner had legally qualified for, and obtained, a common law marriage in another state, then New Jersey is obligated to recognize said marriage.  

New Jersey’s process for recognizing out-of-state common law marriages seems to be simple.  So long as the couple met the requirements for a common law marriage in the other state, New Jersey will recognize the common law marriage.  

Benefits of Marriage

With respect to estate planning topics, married couples do enjoy certain benefits.  These benefits mainly include a legal right to inherit the other spouse’s property and an easier ability to make decisions for the other spouse in the event of incapacity.  

When someone dies without a will, they are said to have died intestate.  Under New Jersey’s intestacy laws, a spouse often stands to inherit a large chunk of an estate, if not all of it.  Unfortunately, an unmarried partner would not be eligible to inherit through New Jersey’s intestacy laws.  This makes it vitally important that you create an estate plan because an estate plan will allow you to name your partner as a beneficiary, thus allowing them to inherit your assets.  

The ability for spouses to inherit from each other is much simpler than for unmarried couples.  If unmarried couples intend to give their assets to their partner upon passing, it must be laid out in an estate plan.  Without such a plan, the estate will be distributed according to New Jersey’s intestacy laws, meaning that your partner would not stand to inherit anything.

Inheritance

As we discussed above, married couples have a legal right to inherit from the other spouse, even when there is no will in place.  In New Jersey, a surviving spouse can claim what is called an elective share.  This allows the surviving spouse to claim one-third of the estate in the event the decedent’s estate plan, or lack thereof, did not adequately address the surviving spouse.  So long as the couple did not cease to cohabitate as spouses, the surviving spouse should have a right to their elective share.  Unfortunately, there is no statute in place to provide similar protections to couples who have not become legally married at the time of the first spouse’s death.

Creating an estate plan with either a will or a living trust can ensure that unmarried couples will be able to inherit from one another in the event one of them passes away.  While these two documents offer some pros and cons relative to the other, either one should be effective in directing your assets to your partner upon passing.

When creating your estate plan, you can confer with your attorney about which beneficiaries you would like to receive which assets.  If you are reading this article, then perhaps your partner is someone you would like to include as a major beneficiary.  That goal can certainly be accomplished through a well-drafted estate plan.

Caring for Your Partner

Aside from inheriting assets, unmarried couples can also benefit from the incapacity documents of an estate plan.  Creating durable powers of attorney for finances and health care can give partners the legal authority to act on the other’s behalf in the event one of them were to become incapacitated or otherwise unavailable.  

For unmarried couples, perhaps you have never gotten around to opening a joint bank account, or maybe only one partner’s name is on the mortgage.  In instances like those, a durable power of attorney for finances can be immensely beneficial because it can give your partner the authority to tend to your finances for you.  You can make the power as broad or narrow as you would like to ensure that you are comfortable with the level of power you are delegating.  The powers can include, but are not limited to:

1. Paying a mortgage;
2. Writing and cashing checks;
3. Paying insurance premiums; and 
4. Entering into contracts

This can be especially helpful if you or your partner were to become incapacitated.  During that time, your partner could continue to tend to your financial affairs for you, helping to avoid a financial mess.  For example, what would happen if your partner was unconscious in the hospital?  Who would be able to pay their insurance premiums, bills, mortgage, rent, and so forth?  Having a durable power of attorney for finances in place can help your partner return home to a healing environment, rather than coming home to a litany of past-due bills.

You can also create a durable power of attorney for health care.  With this, you can name your partner, or any trusted individual, to be able to review your medical records, speak with doctors, and make treatment decisions on your behalf.  

Normally, without a durable power of attorney for health care in place, the doctors would have to try and discern who should be consulted about your medical decisions.  This can lead to fighting amongst your family members as they try to decide on the best treatment for you.  Without naming your partner as your health care power of attorney, it is possible that they get shut out from the decision-making process altogether since they have no legal ties to you.  

By creating a power of attorney for health care and giving the power to your partner, you can rest assured that your life partner, the person who perhaps knows you best, will have a fair say in deciding your medical treatment.  Without a durable power of attorney for health care in place, your partner would likely get shut out of the decision-making process.

How Can Rosenblum Law Help?

Rosenblum Law’s knowledgeable estate planning team can help you make a comprehensive estate plan that cares for both you and your partner.  In cases where unmarried couples want to find the way to best care for themselves and each other, our team can help you arrive at the best solution, giving you the peace of mind that comes from knowing your beloved partner will be cared for afterwards.  While state law may not bestow the same benefits onto unmarried couples as they do onto married couples, our estate planning team can help to bridge the gaps.  From asset distribution to care during your lifetime, Rosenblum Law can create the optimal estate plan for you and your partner.  For a free consultation, call Rosenblum Law at 888-235-9021.