Between 1990 and 2007, the number of non-married couple households increased by 88 percent. Today, most folks know at least one person who lives with a partner but isn’t married. The majority of couples nowadays live together before marrying. Others have committed relationships but prefer not to marry for practical and personal reasons.
Because inheritance and health care laws in Florida haven’t kept pace with evolving relationships, adults who live with a partner need to prepare for the future. If you have an unmarried partner, your estate plan needs particular attention to be sure your intentions are clear. Like any estate plan, yours should include a living will, a healthcare surrogate designation, and at least a will to protect not only your partner, but also any children either of you have.
Health Care Planning Documents
Health care issues can affect everyone. When your primary support network consists of friends and a nonspouse partner, it is especially important to have the proper paperwork to make sure that support system can still help. Without the appropriate documents, your nonrelatives might not be able to visit or get information about your condition. Several lawsuits have been filed against these facilities in the past few years, but things haven’t changed enough to guarantee visitation at critical times.
Just one document isn’t enough: your living will and health care surrogate designation work together. The surrogate designation determines who has the legal authority to make your healthcare decisions when you cannot (such as if you’re unconscious after a car accident). Your living will specifies your wishes for end-of-life care. These documents, together, ensure that your wishes are respected.
When you live with someone, it is often that person who knows you best. This is often the person you’ve had those hard discussions with–like how you feel about surgery, about life-sustaining treatment, about risks you’re willing to take. But without a living will and health care surrogate designation, your nonspouse partner won’t be the person with the authority to make decisions for you. No matter how long you’ve been together, without those documents in place, that person has no legal say.
Problems When an Unmarried Partner Dies Intestate
When individuals die intestate, which means that they don’t have a will, Florida’s intestate succession laws apply. According to these rules, individually owned assets are passed to the closest surviving relative (as defined in Florida statutes). Unfortunately, a non-married partner, even one who lived with the person who just died, won’t have any rights to any of the deceased’s property. Instead, the property will automatically pass to the deceased’s children (even if these are estranged children living in another state). If there are no children, the property will be passed to a parent. If the deceased has no children and both parents have already died, the property will pass to siblings or even cousins. The nonspouse partner–that person the deceased lived with–is left with nothing.
This applies to the house they shared too. Intestate succession and homestead restrictions are intended to protect family members, but they can have unintended consequences that could cause a surviving partner to become homeless. Even if the surviving nonspouse partner lives in the house, when the homeowner dies without a will, the home will pass under Florida law to that deceased person’s closest relative, whether that would be children, parents, siblings, cousins, or beyond.
Homestead Restrictions and Exemptions
Florida has particular laws that protect a homeowner’s residence (one’s homestead). For example, a homeowner with minor children or a spouse cannot leave the house to someone other than the spouse or children, even with a will. If the minor children are not the children of the deceased homeowner’s spouse too, then the spouse does not receive title to the home but does have the right to live there for the rest of his or her life. This also means that if two persons live together without being married, and the person who owns the home has minor children, the nonspouse partner will have no rights to the house if the homeowner dies; the home will go to the children–even if the homeowner has a will.
However, much of this can can be worked around with careful estate planning, pre- or postnuptial agreements, and titling of property. The key here is using great care to protect all parties involved: both partners and any children.
Working with an estate planning attorney allows you to evaluate your options and take time to consider the possibilities long before your plans are needed. Because each partnership is different, documents must be developed according to your specific situation.