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Estate Planning: Unmarried Couples

We usually think of same-sex couples when we think of unmarried couples. But there are young couples who aren’t ready for marriage, couples where one or both have been divorced and are wary of getting married again, and elderly couples who for financial reasons do not want to get married. One of my elderly couples who had been together for more than 25 years didn’t want to get married because then they would have to live together! These unmarried couples can be the same-sex or not, the law applies the same for any unmarried couple. I want to discuss some of the issues and how an unmarried couple can, with planning, resolve these issues without getting married.

Health Care. If an unmarried couple wants to be able to make health care decisions for each other, if they are unable to make decisions for themselves, they each need to complete a Medical Power of Attorney. This form can be found at https://www.iowabar.org under Legal Forms. You do not need a lawyer to complete the form. The couple should give a copy to their family doctors and take it with them any time they go to the hospital.

Residence. I just had an unmarried couple in last week where the residence was only in one of their names. He told me that if he died first, no problem, his children would not kick her out, but he wants his children to ultimately get the house. This is not good planning. They both live in the house and have lived together for many years. She considers the residence her home just as much as he does.

An easy solution would be for the house to be titled in both their names as Joint Tenants With Right of Survivorship. That means if one of them dies, the other one automatically gets the house.

However, it may be more complicated than that. In the example above, he purchased the house and makes all house payments and wants it to go to his children. To solve this issue, they are going to sign a “Residence Trust”which is a revocable living trust that only deals with the residence. It can specifically provide that if he dies first, she can live in the house until she moves out (because of death or otherwise) and can specifically provide that she cannot live there if she is co-habiting with someone else.

Funerals. Funerals are where the ugliness really comes out! For the couple that was together for 25 years but didn’t want to live together, when he died, his ex-wife popped up and took over the funeral. The girlfriend of 25 years was relegated to the back row and felt like she had just been a mistress. This can be avoided. Iowa has adopted The Right to Disposition Act. You can fill out a form, stating what you want done with your remains (buried, cremated, what funeral home, etc.), and more importantly, who is in charge of your remains.

These are just three issues that unmarried couples can address with estate planning. Then they can make the decision to get married on other issues.

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