Estate Planning: Planning for unmarried couples

A: This question touches on so many estate planning issues that it could be a bar exam question. However, since I only have limited space, I’m going to concentrate on estate planning needs of unmarried cohabiting adults.

As most of you know, Indiana does not recognize common law marriage. That means unless you have the paper, Indiana doesn’t recognize you as married. If the state doesn’t recognize the marriage, the couple does not receive any of the rights and benefits bestowed upon married couples, including inheritance rights. It’s for this reason that unmarried cohabiting adults have to plan to create those rights.

In the reader’s case, signing a document is unlikely to be enough. The couple needs to create an appropriate estate plan. If they truly want inheritance rights, they need to execute testamentary documents such as wills. The notarized document could be evidence of intent, but if it’s not executed properly, it’s not likely an enforceable testamentary document. I wouldn’t rely on it.

In addition to the testamentary document, the couple should think seriously about health care issues. If the couple isn’t married, they don’t have any authority to direct medical care for each other. Without the health care rep, they may not even be allowed into the room with the sick partner.

The couple should also think about what happens if something really bad happens and a funeral needs to be planned. Without a plan, the surviving partner may not have a say in the final arrangements.

Finally, in regards to the vehicles, remember that they have titles, so signing a document is likely not enough. In order to add someone’s name to the title of a vehicle, the title needs to be transferred. And while you are checking titles, take a look at the deed to the home to see how it is titled to see if the two of you are tenants in common or joint tenants with rights of survivorship. If it’s not titled as joint tenants, the survivor may not end up owning the entire home at the first’s death.

Unmarried cohabiting adults have unique estate planning needs that need to be addressed through a complete and thorough estate plan, and it isn’t a do-it-yourself job. Contact a lawyer so that it is done right.