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Many Florida families don’t take the time to set out their wishes for their final care, or what should happen to their property when they die. They trust that doctors and the courts will defer to their partner if something happens to them. However, when unmarried partners take this same relaxed approach to estate planning it can create delays and unintended consequences for the couple and any children they may have in common.
Florida probate law contains several protections for married couples, including laws to prevent a spouse from losing their home or property after their spouse’s death, built in assumptions about spouses’ authority to make decisions on their husband or wife’s behalf, and their shared responsibility to care for children in common. Essentially, a married couple is treated as a single entity under the law.
However, unmarried partners don’t have access to these same protections. Domestic partners and others in non-traditional relationships do not count as heirs under Florida probate law. Florida does not recognize common law marriage, so even long-time partners could be cut off from interests in their partners’ property after their deaths.
There are many reasons why you and your partner may choose to cohabitate, rather than get married:
Living together is growing increasingly socially acceptable. That means more and more Florida families are being built without the foundation of a legal marriage. To make up for the lack of protections that come with the word “spouse,” unmarried couples should make estate planning a priority.
The single biggest estate planning tip for unmarried couples and partners is to start as soon as possible. Once you move in together it may be time to start considering whether to include your partner in your estate and end-of-life plan. Here are some considerations for unmarried couples’ estate plans.
One of the easiest forms of estate planning for unmarried partners involves how they purchase and title property in the first place. Homes, cars, and bank accounts can all be held jointly with another person, regardless of whether that person is a spouse. When one title owner dies, jointly held property automatically reverts to the other title owners. There are many reasons why partners may choose not to combine their assets. However, if you are trying to protect your partner in the event of your death, one quick and easy way to do so is to add their name to the title of your home or bank account.
Unmarried partners do not gain a surviving spouse’s elective share in their partners’ assets after their death. These elective shares are designed to make sure that a widow or widower isn’t displaced or cut off from all their assets during their grief. However, unmarried partners don’t have the same protections. Instead, they will be dependent on the language in their late partner’s estate plan. If you want your unmarried spouse to keep possession of your home, furniture, or other property when you die, you will need to write a Will to give that property to your partner directly. Otherwise, it could pass to your parents, siblings, or even cousins, leaving your live-in partner without a place to live.
It is important to remember that estate planning isn’t just about what happens to your property after death. It also addresses your final wishes regarding your own healthcare, expenses, and living arrangements. Many unmarried people trust their partners with these difficult decisions. However, if you become incapacitated without an estate plan in place, the Florida probate court is more likely to appoint a blood relative or private company to act as your legal guardian.
Fortunately, the courts must generally defer to your guardian designation. Probate judges will also look for less restrictive alternatives, such as powers of attorney or patient advocate designations. If you have prepared these documents naming your unmarried partner as your intended decision maker, the court will generally honor those requests and appoint your unmarried partner instead.
Relatedly, federal privacy laws prevent doctors and hospitals from talking about a patient’s condition with their unmarried partners. Unless you have signed a HIPAA privacy waiver permitting your partner to receive your medical information, they may not be informed about your condition, or the options available for your treatment.
Similarly, if you have children (or pets) when you pass away, the Florida courts may overlook your unmarried spouse as a potential guardian or caregiver. No amount of family planning will replace a family court custody order placing a child with a parent. However, if your child does not have a second legal parent – such as in cases of adoption or where the child was conceived to unmarried parents – you may need to complete a guardianship designation indicating you want your children placed with your partner if you died.
Estate planning is essential to protect unmarried couples from losing their connection to one another, and their shared property when they become incapacitated or die. At Harrison Estate Law, P.A., our experienced estate and probate team can help you create an estate plan that will protect you, your partner, and your children. We will help make sure you have all the documents in place so that doctors, family members, and the Florida courts give your life partner the respect they deserve. Contact us here or call 352-559-9828 to get help today.
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