Love and “Marriage”: Effects of Different Relationships on Your Estate Planning
Many people assume that if you have been a couple for a long time in California, that you eventually become legally married under common law. California does NOT recognize common law marriage regardless of how long you have been together, and/or if you declare to others that you are married. There are certain circumstances where a common law marriage may be recognized if you were living in another state that recognized common law marriage at the time you decided to be married, however, even in states that recognize common law marriage, you must meet very specific criteria to be considered married by common law.
As a result, unless you provide specifically for your life partner in your estate plan, they can face very dire financial circumstances if your estate is probated according to intestacy laws (California’s plan for your estate if you do not make a will or trust). Under California intestacy laws, unless a couple is legally married or has a legal domestic partnership, the surviving life partner is not provided for by the estate. Additionally, your life partner will have no authority to handle your remains unless you specifically identify them as your agent. California law will default to “next of kin” to handle your remains unless you legally appoint agents.
Your life partner may also lose, or not be entitled to pension benefits (e.g., Social Security, Veterans benefits, private sector benefits, etc.) that they need to sustain their current standard of living, or to pay debts you accrued together as a couple.
Instead of marriage, some couples elect to pursue registered domestic partnerships. Domestic partnerships are permitted for all same-sex couples and for opposite-sex couples who are 62 and older. Domestic partners have same state rights and responsibilities as married couples. A registered domestic partner will have the same rights that spouses do regarding probate and for making medical decisions. It is important, however, to ensure that you follow the steps to become officially “registered” by the State of California. It is also important to note that many benefits of community property (such as full stepped-up basis on appreciated assets if one inherits jointly held property) do NOT apply to domestic partners.
As you approach retirement as a committed couple, it is essential to consider your relationship status and how you need to plan to ensure there are no unintended consequences should something happen to either of you. Please visit our website at www.SanJoseElderLaw.com, or call (408) 286-2122 to schedule your complimentary consultation if you would like to discuss planning options.
All materials have been prepared for general information purposes only to permit you to learn more about our firm, our services and the experience of our attorneys. The information presented is not legal advice, is not to be acted on as such, and may be subject to change without notice.