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Why Unmarried Couples Need Estate Plans in New York

There can be many reasons why a couple who has been together for years may decide not to get married.  Around 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 obstacles, professional obstacles, or financial obstructions.  The decision to remain together but not get married is a personal one however, unmarried couples do not enjoy 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 one another and care for one another.  The decision not to get married is between you and your partner.  Do not let that decision preclude 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 of 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 York does not allow common law marriages for couples that live in New York.  The only time New York recognizes a common law marriage is when the common law marriage was legally obtained in a different state.  The couple must have been living in that different state at the time in order 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.  This means that so long as you and your partner legally qualify for, and obtain, a common law marriage in another state, New York state has to recognize it.  

The process for proving an out-of-state common law marriage in New York can including:

  1. Proving you and your partner consider yourselves to be a married couple;
  2. You and your partner have acted like spouses when presenting yourselves outwardly to others;
  3. Neither you nor your partner is married to someone else; and
  4. You and your partner live together and act as married spouses do.

These requirements may be somewhat subjective.  To properly navigate and learn how to prove these requirements, we recommend speaking with an attorney in your jurisdiction who specializes in these issues.

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 York’s intestacy laws, a spouse will inherit at least a big chunk of their spouse’s estate.  If the decedent does not have any children, then the spouse will inherit their entire estate.  

Married couples also have an easier path for caring for one another in the event one becomes incapacitated.  New York’s Family Health Care Decisions Act lists a pecking order to determine who can make medical decisions for an incapacitated person who does not have a health care proxy.  Spouses are second on the list, beaten out only by court-appointed guardians.  That means that, even when one does not have a health care proxy that grants their spouse the ability to make medical decisions for them, the spouse is near the front of the line to accept that power anyway.

The ability to inherit intestate property or to make medical decisions on your partner’s behalf is much easier for married couples.  Fortunately, a well-drafted estate plan can effectively close this gap for unmarried couples.


Married couples have a legal right to inherit from the other spouse, even when there is no will in place.  In New York, a surviving spouse can claim what is called their elective share.  This entitles the surviving spouse to the greater of $50,000 or one-third of the decedent’s estate.  Unless the couple has entered into a pre- or post-nuptial agreement that alters the allowable share, or if the surviving spouse disqualifies themselves through actions such as abandonment or divorce, then the surviving spouse shall be entitled to this elective share.  Unfortunately, unmarried couples are not entitled to claim an elective share in New York.  This is one reason why estate planning is so important for unmarried couples.

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 advise your attorney of which beneficiaries you would like to receive which assets.  If you are part of an unmarried couple living in New York and do not create an estate plan, then your partner would not inherit anything, unless you name them as a beneficiary on an asset that allows such a designation, such as a life insurance policy.

By creating a will or a trust, you can give your partner anything and everything that you would want them to get from your estate.  Assuming your estate plan was executed properly, then the court will give the executor of your will the authority to act and the executor will be tasked with following your wishes precisely how you stated them.  This will ensure that your beloved partner will be able to receive the assets they need to continue living how they have become accustomed to living.

Caring for Your Partner

Aside from inheriting assets, there is another major aspect of estate planning that can heavily benefit unmarried couples.  Creating durable powers of attorney for finances and health care can give partners the legal authority to act on each other’s behalf in the event of incapacity or unavailability. 

For unmarried couples, perhaps you have never gotten around to opening up a joint bank account.  Maybe only one partner’s name is on the mortgage.  Maybe only one name appears on each partner’s check book.  Creating a durable power of attorney for finances can give partners the authority to manage the other’s finances in the event of incapacity or unavailability.  After completing a power of attorney for finances and granting your partner said power of attorney, your partner will have the ability to manage your finances for you.  These powers can include, but are not limited to:

  1. Paying a mortgage;
  2. Writing checks;
  3. Cashing checks;
  4. Paying insurance premiums; and
  5. 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.  

New York passed the Family Health Care Directives Act which allows certain people to make medical decisions on behalf of an incapacitated person in instances where the incapacitated person does not have a named health care proxy.  Spouses are second on the priority list whereas close friends are last.  Since unmarried couples are not technically spouses, the law may view unmarried partners as being last on the list to make medical decisions on behalf of their incapacitated partner when the partner does not list them as a health care proxy.

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 has a knowledgeable estate planning team that can help people navigate certain variables to create the best estate plan for someone’s individual needs.  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.   Our creative solutions involve asset-directing documents such as wills and living trusts, as well as incapacity documents to help you prepare for all life may throw at you.   For a free, no obligation consultation to discuss your estate planning needs, call Rosenblum Law at 888-235-9021.

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