Christopher K. Caswell Estate Planning Law Blog on Lawyers.com

Wealth planning for unmarried couples is more complicated
than planning for a single person or a married couple. We can speak to groups
and individual couples about these issues to make sure they understand their
wealth plan and asset ownership and transfer issues after a death. Let us know
who we can help with the following type of issues.

Do you know anyone who is in a relationship (and that can
also mean just good friends), but who may be treating that relationship with a
higher level of commitment than just friendship?  Are they sharing living
quarters, buying property together (real estate, furniture or collectibles for
example), granting decision-making authority to each other, intending to provide
each other as estate beneficiaries, etc.?

We can speak to groups and individual
couples about these issues to make sure they understand their wealth plan and
asset ownership and transfer issues after a death. Let us know who we can help
with the following type of issues. Wealth planning for these types of situations
is more complicated than planning for a single person or a married couple.  And
in this day and age, it is hard to define what "married" really means.  Well,
actually, it is pretty easy to define what it means for general wealth and
estate planning purposes: it is a traditional marriage between a man and a
woman.

It is a little more complicated to define what it means when you are
dealing with state law rights and benefits, and insurance and health related
issues.   When you are dealing with various state recognized relationships such
as civil unions, domestic partnerships, legalized same-sex marriage, both valid
and rescinded, the issues are a lot less clear. Some of the more important
issues have nothing to do with marriage, but more to do with privacy, delegation
of clear authority, and overcoming state and federal presumptions in the law.

Here is a short list of some of those issues:

1.  Presumptions are given to
spouses and family (specifically blood relatives) for service as guardian during
any incapacity, health-care surrogate, power of attorney, for the control of a
decedent's remains, and for the receipt of protected medical information.  A
good set of complete ancillary documentation can help resolve these issues and
remove any uncertainty.

2. There are no "free" transfers between unmarried
couples like there are between spouses. This has a huge effect on planning. 
Jointly held property must account for the relative contributions between the
parties and any gifts identified, and perhaps even a gift tax return must be
filed.  Estates are more difficult to balance in order to maximize estate tax
planning.  Retirement plans may be more difficult to roll over.

3. 
Relationships between families can be strained, and thus more prone to
litigation.  In order to exercise some solid control after one of the parties
dies, a well drafted revocable living trust can clearly delineate rights and
responsibilities that may be stronger protection against any attack than the
traditional probate process.

4.  The treatment of homestead property, at least
in Florida, may also create challenges unless it is dealt with properly in a
will and revocable living trust.  The use of life estates may be beneficial in
defining and establishing certain rights of occupancy for a surviving party of a
relationship.

5.  The legal authority of a party over the children of the other
party in a relationship may need to be clearly established through
guardianships, trusteeships, etc.

6.  A well drafted property, cohabitation and
domestic partnership agreement may be necessary to clearly establish the
relative rights and responsibilities of the parties with respect to sweat equity
and contributions to individually owned property, child visitation, support,
liability for debts and taxes, and most importantly perhaps, the termination
of the relationship (a statutory procedure like divorce may not be available).

Most unmarried couples are not aware of these complications and the need for
well-crafted documentation to clearly express their wishes and desires.  Without
a clear written statement, it is likely that those wishes and desires will not
be met.