Estate Planning: Gaining Some Marriage Benefits Without Being Married

Marriage is a deeply personal decision, one that may be affected by legal realities. Being married confers many legal benefits on the married individuals. Some of these cannot be replicated outside of legal marriage, but some of the automatic rights gained in marriage can be conferred without the ceremony, especially through proper estate planning.

One of the rights that married couples have that unmarried ones do not is the right to intestate inheritance (inheritance by state statute, not through a will). In Indiana, a spouse is guaranteed an inheritance if their spouse dies, as well as a spousal allowance meant to provide support for the widow(er) until the estate completes the probate process. If a couple is unmarried and without wills, the decedent’s significant other could be left without any ability to inherit under law. A will naming that significant other would fix the inability to inherit from a deceased partner, but it doesn’t offer an opportunity to grant a spousal allowance. However, a good estate planning attorney can utilize a living trust to make sure your significant other, married or not, is not left without necessary resources at the most difficult time of their life. Such a trust could make your assets immediately available to your partner without the time and expense of probate.

Another right that married couples inherently have that unmarried couples do not is the right to receive medical information, and participate in medical decisions, in an emergency. Imagine your loved one being gravely injured but doctors will not give you key information or allow you to participate in key medical decision-making because the law does not consider you “family.” Such would be devastating, but a well-crafted healthcare power of attorney (HCPOA) can prevent this situation. By executing an HCPOA, you can name your significant other as your medical decision-maker, a status that would not be dependent upon the legal status of your relationship. Your loved one would be able to receive all medical information and participate in decision-making to the level you pre-authorize.

Yet another potential bad situation that proper estate planning can circumvent is your significant other not having the right to assist you and care for you if you become incapacitated. State law explicitly creates an order of priority for who may become guardian, and a legally non-related significant other simply is not on the priority list. Executing a durable power of attorney, however, would allow you to state clearly that you want your significant other, or anyone else, to be responsible in any case where you become legally incompetent. This would allow you to decide that your closest confidant and life partner has the ability to continue in that role, especially in a situation where you may have other family members that would try to prevent that.

While estate planning is not a full legal replacement for marriage, it can help to close the gap on some of the rights that married couples possess but are denied to unmarried couples. If you would like more information about proper estate planning, the Indiana estate planning attorneys at McNeelyLaw LLP, are here to help.