Newport Beach Estate Planning AttorneyBy Newport Beach Estate Planning Attorney Darlynn Morgan

Between 2007 and 2016, the number of unmarried couples over the age of 50 who were living together increased by 75% according to the Census Bureau. There are several factors contributing to the rise in romantic roommates. A change in social attitudes towards cohabitation has lifted much of the pressure on older couples to remarry before moving in together. The cost of living makes it harder to keep up two households. And some people may want the companionship of living with a partner without the legal commitment of marriage, especially if their previous marriage ended in divorce.

Living together without being married, however, has its fair share of legal issues. Laws related to estate planning haven’t caught up with the cohabitation trend which means that most of them are still geared towards married couples. Although unmarried couples of any age are at risk of facing unexpected legal issues if anything happens to either of them, couples over the age of 50 are more likely to find themselves in a complicated legal situation.

Consider the story of Frank and Donna, a couple in their late 50s who started living together after two years of dating. Donna became a widow in her late 40s after losing her husband to cancer. Around that same time, Frank and his first wife had gone through a divorce shortly after their youngest child moved out of their home. Neither Frank nor Donna had any desire to remarry in spite of how much they enjoyed each other’s company or how committed they were to their relationship. It also made financial sense for Frank to move out of the home he’d been renting since his divorce into the home that Donna had owned with her late husband.

About a year after the couple began living together, Frank was seriously injured in an accident at work. Even though Frank’s employer was able to call Donna and let her know what had happened, Donna was unable to get any information from the hospital about his condition. Because she was not his spouse and he had not prepared a healthcare power of attorney, Donna had no legal right to obtain any information or make any medical decisions on Frank’s behalf. Their living situation had absolutely no bearing on their legal rights. However, if Frank and Donna had decided to get married, their marital status would have afforded each of them those rights simply based on the fact that they were officially husband and wife.

Another unmarried couple found themselves in a financial, rather than medical, crisis as a result of their marital status. Martin, a man in his mid-60s, had been living with his partner, Lisa, for just a few months when he suffered a series of strokes that left him temporarily incapacitated. Because Martin had a substantial income from a job that required a lot of traveling, Lisa had left her job so that she could accompany him on his business trips. Unfortunately, the money that the couple used to cover their living expenses came from Martin’s accounts. With their busy lifestyle, he simply hadn’t taken the time to add her name as a joint owner of the accounts or set up any type of estate planning documents that would have granted Lisa access to his finances for any reason.

So, is getting hitched the only way a couple over the age of 50 can ensure that they have the right to make medical decisions or access financial accounts if either of them are incapacitated? Of course not. In both of these situations, the couples could have taken the proper steps to ensure that they would have many of the same rights as married couples. The only difference is that married couples are granted these rights automatically by the law while unmarried couples have to prepare and sign some basic estate planning documents.

The two most important legal issues that need to be addressed for unmarried couples who are living together are financial and medical. Most of this can be covered with three important documents: a durable power of attorney, a medical power of attorney, and a living will. A durable power of attorney can ensure that your partner can manage your finances if you’re unable to while a medical power of attorney allows them to manage your medical care if necessary. A living will can help make sure that your wishes regarding any end-of-life decisions are carried out. You may also want to consider additional documents such as HIPAA releases which allows medical providers to release information to designated persons.

An estate planning attorney can further advise you on which estate planning documents you’ll need in order to give your live-in partner the same rights as a spouse. One key document in this regard is a living trust. Regardless of how much involvement you want your partner to have in your healthcare and financial decisions, it’s important to be honest with him or her as well as the attorney you hire to handle your estate plan.

If you have questions about legal protections for cohabiting couples, or you’d like to get started in creating a plan that ensures you and your partner are protected if something happens, simply call our office at (949) 260-1400 to schedule a consultation.