Under California law, domestic partners have all of the same rights as a married couple. However, if you and your partner are not married, and not registered as domestic partners, you will need to be especially careful that your estate plan is in place to carry out your wishes when you die, or if you become incapacitated.
A California estate planning attorney can explain how to create an estate plan suited for unmarried partners and draft the documents you need.
Unless you are married to your partner, or registered as a domestic partner with the State of California, you may find that California law considers you and your unmarried partner to be “legal strangers” for purposes of estate administration. No matter how deeply you care for your partner, if you and your partner are not married, and not registered as domestic partners with the State of California, the only way your unmarried partner can receive any of your assets or other protections is if you make that happen. The law will not do that for you.
Wills and Trusts for Unmarried Partners
If you do not have a will or living trust, your unmarried partner will not receive anything from your estate when you die. People who do not leave a will or trust behind die intestate, which means that California intestacy laws will control how their assets get distributed. An intestate estate goes only to your blood relatives and surviving spouse or domestic partner if you have one.
You will need to create a will or trust for your unmarried partner to inherit from you. Either one can work for this purpose. One consideration in choosing between a will and a trust is privacy. A will must be filed with the probate court after you die, so it becomes a public record. A trust does not usually get filed in court, so you have greater privacy concerning the distribution of your assets.
An important thing to note is that if you were married to someone other than your current partner and you separated from your legal spouse but did not finalize the divorce, your legal spouse will have a claim on your estate whether you die intestate or with a will or trust. You should discuss this issue with your estate planning lawyer if you are in this situation.
Powers of Attorney for Financial Matters and Healthcare Decisions
You will want to make a Durable Power of Attorney that gives your unmarried partner the legal authority to manage your financial matters if you become incapacitated if that is the person you select for that function. Otherwise, your partner would have to get a court order, which your family might contest.
You can name your unmarried partner as your medical decision-maker if you become unable to do so for yourself. You will want to include a medical records authorization and written instructions for your healthcare providers that allow your partner free access to visit you in the hospital or long-term care facility. Some families have blocked a partner from seeing the other partner in the hospital because the relative did not approve of the person’s lifestyle choices.
It can be useful to make a list of all your financial accounts and review the beneficiary designations. In a committed relationship, you might want to make your unmarried partner the beneficiary of your life insurance and retirement accounts. Bank and investment accounts can transfer automatically upon your passing by adding transfer on death (TOD) or pay on death (POD) instructions to the accounts. Your financial institution can provide the forms for this account change. A California estate planning attorney can craft an estate plan for unmarried partners to help you meet your goals and needs. Get in touch with our office today for a free consultation.