Hyden, Miron & Foster, PLLC Law Blog

Thursday, September 17, 2015

Estate Planning for Unmarried Couples

Increasing numbers of couples in this country have made the decision not to marry. Older couples, most of whom have been divorced or widowed, and younger couples, who may be postponing marriage indefinitely, often decide to simply live together rather than to marry. Even same-sex couples, who have recently won the legal right to wed, often choose not to.

It is important for all individuals and couples to become informed about the legal consequences of their decisions concerning whether or not to marry. Several tax issues are at stake.  While legally married couples are permitted to leave their entire estate to the surviving spouse free of the burden of estate taxes, all others will have to pay tax over the exclusion amount. This amount is high -- $5.43 million in 2015-- but there are other inheritance benefits to being married.

In addition to inheritance advantages, married couples enjoy the legal benefits of:

  • Social Security
  • Immigration status
  • The right not to testify against one's spouse
  • Joint bankruptcy filing and protection
  • Surviving spouse benefits (victim's compensation)
  • Hospital visits
  • Healthcare decisions

Since there is no common-law marriage in Arkansas no matter how long a couple has lived together, a Probate Court will not recognize cohabiting couples as legally joined. This means that if one partner dies, the surviving partner is not entitled to any benefits without additional planning.  The "next of kin" of an unmarried partner can file for any property that is left behind, including the home that the remaining partner lives in, even if said partner has contributed to the maintenance of that property for many years.

Because the law, rather than loving commitment, governs estates and inheritance, it is extremely important that bonded couples who are unmarried investigate potential legal ramifications of their status and engage in careful estate planning. Generally for couples with estates under $100,000, a well-prepared will may be all that is necessary, while for couples with larger estates, it will probably be necessary to establish a Revocable Living Trust. In either case, designating agents to make financial and healthcare decisions if one partner is incapacitated are important. No matter how young or old, every couple should consult with an attorney familiar with estate planning and tax law to ensure the future protection of each partner.

If you reside in Arkansas and have any questions or concerns regarding estate planning or tax law, please don't hesitate to contact one of our experienced and skilled attorneys at Hyden, Miron & Foster, PLLC.  We can be reached at 501.482.1787 or 888.770.1848.

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