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Estate planning for non-married couples
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Estate planning

Estate planning for non-married couples

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Q: My boyfriend and I have been living together for almost fifteen years. We each have children from previous marriages but none of our own. We want to leave our estates to each other but we are worried that our children will fight it. How can we make sure that our estates go to each other? Can we put something into our wills that if anyone challenges the will, they will receive nothing?

A: Your question touches on a lot of different issues. However, what it really comes down to is how do non-married cohabitating adults plan?

As most people know, when two people get married, they obtain certain statutory rights to each other’s estates. Since the rights are statutory, they attach automatically. If a married couple doesn’t want those rights, they should limit them by using a pre-nuptial agreement or, the less favored, post-nuptial agreement.

In your situation, the two of you don’t have the statutory rights that married couples have and, contrary to what a lot of people think, Indiana does not recognize common law marriages. Nope, in order for a non-married Indiana couple to leave each other property they have to plan.

In the past, most of my estate planning for unmarried couples involved same sex couples. Now that marriage equality is the law of the land, I don’t see that as much. However, I still see a fair number of older couples who are cohabitating. Love isn’t limited by gender or age.

In your case, I think that you are worried about a problem that probably isn’t a problem at all. If you execute valid estate plans, you should be OK, no matter what the kids do. Obviously anyone can sue anyone so I can’t guarantee that kids won’t challenge the will. However, I will tell you that will challenges are rare and successful will challenges are even more  rare.

I wouldn’t lose any sleep over this. Talk to your attorney and let him or her know your concerns and let the attorney take care of it. Attorneys can plan for potential will challenges. Unfortunately, Indiana doesn’t like provisions that try to exclude an individual if they challenge a will. Those types of provisions are called in terrorem clauses and Indiana won’t enforce them.

Finally, when the two of you are discussing estate planning, don’t forget about the power of attorney and healthcare representative appointments. If the two of you want to be able to be involved with each other’s finances and healthcare decisions during your lifetimes, you need to create that authority. To me, that’s the thing that you should be concerned about. Getting your stuff to the people you want to have it is important, but making sure that you are in the hospital room with a sick significant other is at least, if not more important.

Christopher W. Yugo is an Attorney in Crown Point Indiana. Chris’ Estate Planning Article will appear every Sunday in the Times. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, Indiana 46321 or to Chrisyugolaw@gmail.com. Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.

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