Estate planning is one of the most important actions unmarried couples can take to provide themselves with certain protections under the law. Because unmarried couples do not have the same legal authority, this can present issues should one of the partners die or become incapacitated without an estate plan in place. To avoid running into these issues, you may want to consider devising an estate plan that includes your unmarried partner.
Getting started on estate planning can feel burdensome. However, it can actually be quite straightforward with the help of an experienced and skilled Seattle estate planning attorney. If you are unmarried and are considering estate planning that will include your partner, here is what you need to know.
Estate planning can benefit unmarried partners in Washington state.
In Washington state, if you are married and die intestate (without a will), your community property and half of your separate property assets will automatically pass to your spouse. If you and your partner are unmarried and you die intestate, despite any intentions you may have to the contrary, your assets will pass to your next of kin according to succession laws. More specifically, without a will, your assets will first pass to any living children you may have, then your parents, then siblings, but not your partner.
Furthermore, if your partner wishes to make a claim for any property, such as the home you’ve shared together for a decade, your partner will be forced to bring a lawsuit against your estate to make such a claim. That process is stressful and costly, at a time when your partner may be emotionally distraught and grieving.
By estate planning while you are in good mental and physical health, you can best control the disposition of your assets and make any end-of-life decisions you may have before you are in a position where this becomes difficult or you are otherwise unable. Planning now can help ward against future legal disputes, which can be expensive and time-consuming. Estate planning can also reduce stress and fighting among loved ones or relatives, as they know what your wishes are, and offer you peace of mind while you are alive.
A domestic partnership is a factor in estate planning.
A domestic partnership describes the relationship between two unmarried people who live together. If you and your partner are unmarried, you may consider entering a domestic partnership instead of marrying.
Domestic partnerships can afford unmarried couples many of the protections marriage affords under Washington state law, but not under federal law. Those can include the power to make health care decisions for the other partner (but only if proper power of attorney documents are in place), how assets will be inherited, what will happen to property that a couple accumulates during the partnership together, and other responsibilities.
In order to enter a domestic partnership, at least one person in the partnership must be over the age of 62. You and your partner must also share a common residence, in addition to the usual requirements for marriage, such as being able to consent and being of age.
You will need to determine which estate planning roles your partner will fulfill, if any.
To get started on your estate plan, one of the first steps you should take is to determine what roles your partner will fulfill. What fiduciaries you choose in your estate plan can turn on many factors, and your partner may not be the right choice for all of them.
Who you choose to be a fiduciary is a crucial piece in the estate planning puzzle. In any particular estate plan, there could be a variety of roles that a fiduciary may fill. Those roles include a will’s executor, an agent, and a trustee. An individual or an organization can serve as a fiduciary. As part of your estate plan, you may also wish to consider naming a guardian for minor children or any adult you may be caring for during your lifetime who will continue to need supervision, financial or otherwise. If you intend to create a revocable or irrevocable trust as part of your estate plan, you will likewise have to choose a trustee.
Your partner may be the best choice for one or more or none of these roles. But if you wish to have them serve any of these functions, your estate plan is the place to name them. Be sure to communicate your intentions about naming them for a particular role before doing so. That way, they know what to expect and can decline the position if they choose.
Your estate planning lawyer will help you decide which estate planning documents you may need.
After you have an idea about which roles your partner will play in your estate plan, your estate planning lawyer can determine which estate planning documents you will need. The typical documents in a comprehensive estate plan include the following:
- Medical and financial powers of attorney
- Advance healthcare directive
- HIPAA authorization
- Declaration of Disposition of Remains (“DDR”)
- Declaration of State Registered Domestic Partnership form
Your will is a document that allows you to designate who your property and assets go to, who will become the guardian of your children, and who will be your executor, the person who ensures your wishes are carried out. It also allows you to take control over how assets are managed for your heirs, through a testamentary trust.
Without a will, the state of Washington decides what happens to your assets, and, according to succession laws, that may not include your partner unless you are married. In Washington state, there is an entire body of caselaw detailing the inheritance rights of what is referred to as “committed intimate partners,” which are unmarried partners.
Washington state doesn’t have statutes or laws concerning this distinction specifically but does have case precedence that says unmarried partners do, in fact, have inheritance rights. However, claiming those rights often involves filing a claim during probate, which is essentially the same as arguing with the deceased partner’s family. It is rarely pretty. The best protection, therefore, is to have a will clearly stating your wishes.
You will also likely want to designate powers of attorney (“POA”s). There are two important types to consider: medical power of attorney and financial power of attorney. A medical POA is a legal document that allows a person you appoint to make important decisions about your medical care, including treatment, medications, and end-of-life care, in the event that you can’t make decisions for yourself. A financial POA is similar to a medical one. It authorizes an individual you choose to make important financial decisions for you, which can include managing property or other financial matters and can include taking care of your dependents in the event of your incapacitation.
Spouses often believe they will be able to make these decisions without being authorized via a POA. This is not necessarily true. Perhaps in the “good old days,” but more and more frequently banks and hospitals are not taking the word of the spouse and are instead demanding a POA, which it is often too late for, or a court order for temporary guardianship. Again, being married does not automatically allow your spouse to make decisions for you. Some banks or hospitals may let it slide by, but in no way do they have to. The bottom line is that whether you are married or unmarried, it is critical to have medical and financial powers of attorney so your partner can make decisions in the event you cannot.
You may also consider creating an advance health care directive, which is sometimes also referred to as a living will. These documents let you determine how you wish to be treated in the event you are rendered permanently unconscious or in a permanent, terminal condition (such as being on life support). In your living will, you can decide whether you want your life to be artificially prolonged or if you would prefer to be allowed to pass away naturally in certain circumstances.
You should also consider having a HIPAA authorization document. This will allow someone you choose to obtain otherwise protected medical information about you, such as your medical history, current diagnoses, and physician recommendations. Such information can be critical for your loved ones if they are making decisions about your medical care or have a medical POA. If they cannot access your health information, they may not be able to make the best decisions for you, especially when the unexpected occurs. A comprehensive estate plan will include HIPAA release language both in the medical POA and in a separate release.
Next, you may want to add a document concerning the disposition of remains. Washington State does not have an automatic procedure in place for what happens to your remains when you die. The power is yours during your lifetime. So, if you have specific thoughts about how you would like your remains handled, let your estate planning attorney know.
By Washington state statute, you must make any choices regarding the disposition of your remains via a written expression known as a Declaration of Disposition of Remains (DDR). To be valid, you must sign a DDR before a witness. Your DDR must also clearly state your instructions.
The purpose of a DDR is to make your wishes easily accessible to your family at or before your death. If you include your wishes in your will, you risk your family not being able to find your will or not find it in time to carry out any wishes you may have concerning your remains. These decisions happen long before probate and, therefore, should not be a part of the will.
Finally, if you intend to enter a domestic partnership with your partner in Washington state, you will need to file a Declaration of State Registered Domestic Partnership form with the state of Washington. Your estate planning attorney can assist you with this filing.
Planning and organization are important in estate planning.
Planning and organization are key when estate planning. The more you have thought about your decisions beforehand, the more likely you will create an estate plan that will protect your loved ones and you for the foreseeable future. That said, it is important to revisit your estate plan every three to five years or any time there is a life passage that could affect it.
Take some time to think about how you want your assets to be distributed. Also, discuss with your partner what your intentions are for your estate plan, including their role in it. Having this information at the beginning of your estate planning process not only helps you and your partner to be on the same page, but it can also make the process more straightforward for your estate planning attorney.
In addition, consider digital estate planning when you are getting materials together and organizing. Are there online bank accounts that your partner will need access to? Are there social media accounts that you wish for them to have control of in the event of your passing? Make note of these.
Digital and online accounts are often forgotten about or lost, so it is important that your partner has the passwords and information necessary to access these accounts. Creating a plan for how your partner will access this information can reduce stress and help your partner fulfill your wishes. At Elise Buie Family Law Group, our estate planning attorneys provide a guide to our clients called an Executor’s Guide at the end of every case specifically for this purpose.
Communication with your partner, your loved ones, and anyone else who may be affected by your wishes is a crucial part of estate planning. Sitting down and discussing what you wish to happen after your passing can be a helpful way to get started, regardless of if you have specific plans in mind.
If you do have concrete plans, talking about them with loved ones can help make sure you are not forgetting pertinent details related to them or otherwise. Open communication can also reduce stress or the potential for discord after you or your partner’s passing or during stressful moments, particularly during a crisis. Finally, communicating clearly with your loved ones makes it easier for you to begin the process with your estate planning attorney.
Find a Seattle estate planning attorney.
Thorough estate planning means attending to details you may not remember or have thought of on your own. This includes making your partner a part of your estate plan. Doing so can give you (and them) peace of mind during your lifetime as well as put the protections in place so that your wishes are upheld after you die.
If you would like to include your partner outside of marriage in your estate plan, or the individual named in your domestic partnership, the estate planning team in our Seattle office has vast experience in this area. To discuss the specific details of your estate plan, call our office today.