Unmarried Couples Have Acute Need for Estate Planning
I sometimes review and answer basic questions in online legal forums.
Some questions are truly “off the wall”, while others are thought-provoking.
The following question was recently posed in an online Q&A forum:
QUESTION: A couple not married but living together for over 20 years, if one passes away does the other one have any rights?
My friend was living together with her significant other for over 20 years, never married though, he passed away and now his adult children want to take everything that my friend and the guy had together. I guess it’s diffirent (sic) because nothing was on her name. But does she still have any rights? Before his adult kids put her out of their house?
I provided the following response:
ANSWER: As noted in prior answers, Illinois does not recognize common law marriage. In the eyes of probate law, unmarried couples are essentially strangers. This is why unmarried couples have an acute need for proper estate planning before it’s too late.
If they owned any assets in joint tenancy (with right of survivorship) that would pass by operation of law to your friend. Perhaps if they purchased personal effects together (jointly) or for each other (gifts), that may be either joint property or property already gifted to the other.
She may also have some claims against the estate. For example, if she loaned him money, she might be able to file a claim. Also, if he was ill and she cared for him, she may have a care claim.
As a tenant in the house, his children (or the representative of his estate) may need to file eviction proceedings to have her legally removed. This process takes several months.
So, while she cannot directly inherit from his estate unless he had a Will, there may be some steps that she can take to best protect her interests and to properly negotiate with his children to come to a reasonable amicable agreement. I would suggest that she contact a probate attorney to sort through these issues and help deal with this difficult situation.
This question really highlights the critical need for unmarried couples and others in non-traditional relationships to do proactive estate planning, especially when individuals are cohabitating. An unplanned estate plan is never a good idea, but that’s especially the case for couples that have chosen not to get married. Without a Power of Attorney for Health Care, an unmarried partner has no power or authority to make medical care decisions for the other. And as the above Q&A shows, the default state law of intestacy is not going to meet your needs, and in some cases, can lead to really unfortunate and contentious results. Image courtesy of Wikipedia Commons