Estate planning is a crucial yet often overlooked topic for unmarried couples in New York. Unlike married couples, unmarried partners do not automatically have the same legal protections. For instance, if one partner passes away without a will, the surviving partner may not have the right to inherit assets or make important decisions related to medical care or finances. This can cause unnecessary stress during an already difficult time. Proper estate planning ensures that both partners are protected and that the surviving partner has the legal right to make critical decisions and inherit property. Without proper planning, unmarried couples face a greater risk of financial hardship and legal challenges when one partner dies or becomes incapacitated.
Richard H. Cole
Partner
Thomas F. Hewner
Partner
Donna L. Haslinger
Partner
Vivian P. Roche'
Partner
Keith R. Rosso
Attorney
Tasha D. Frazie
Attorney
Tyler I. Wood
Attorney
Marc A. Cangé
Attorney
Teresa M. Cappiello
Attorney
Unmarried couples should understand the importance of having the right legal documents in place. These documents ensure that their wishes are honored and that their assets are transferred according to their desires. Many unmarried couples mistakenly assume that because they have lived together for a long time, the law will treat them like a married couple in terms of inheritance and decision-making powers. However, New York law does not automatically provide these rights for unmarried couples. Therefore, it is vital for unmarried couples to actively engage in estate planning to ensure that they are both legally protected.
Creating a Will 
Creating a Will is one of the most essential steps unmarried couples can take in their estate planning. A Will allows each partner to dictate how their assets will be distributed after their death. Without a Will, the state’s intestacy laws will determine how the deceased’s property is divided. These laws usually prioritize blood relatives over partners, which could result in the surviving partner receiving little or nothing. If an unmarried person wants their partner to inherit their property, it is vital that they explicitly state this in their Will. It is also important to appoint a trusted person, such as the partner, as the executor of the Will. The executor is responsible for ensuring that the terms of the Will are carried out properly and that the estate is distributed according to the deceased’s wishes.
The Power of Attorney
In addition to a Will, unmarried couples should also consider setting up a Power of Attorney. A Power of Attorney is a legal document that grants someone the authority to make financial decisions on another person’s behalf. In the case of unmarried couples, this is especially important if one partner becomes incapacitated and unable to make decisions for themselves. If a partner does not have a Power of Attorney in place, the surviving partner may not have the legal authority to manage the incapacitated partner’s financial affairs. The Power of Attorney can also help avoid the need for a court-appointed guardian or conservator, which can be time-consuming and expensive. By setting up a Power of Attorney, both partners can ensure that the surviving partner has the legal right to manage their financial matters should the need arise.
The Healthcare Proxy
Another important document for unmarried couples is a Healthcare Proxy. This document designates a person to make medical decisions for someone if they are unable to do so themselves. Without a Healthcare Proxy, an unmarried partner may not have the right to make medical decisions on behalf of their significant other in the event of an emergency or incapacity. In New York, family members are typically given decision-making authority, but in the case of unmarried couples, family members may not support the partner’s wishes. A Healthcare Proxy ensures that the partner can make healthcare decisions on behalf of the other in critical situations, such as when a partner is in a coma or unable to communicate.
Considering a Living Trust
Many unmarried couples may also want to consider creating a Living Trust. A Living Trust allows individuals to transfer their assets into a trust during their lifetime, which can help avoid the lengthy and costly probate process. When someone dies with a Will, the estate must go through probate, which is a court-supervised process of distributing assets. This process can take months or even years and may involve significant legal fees. By establishing a Living Trust, unmarried couples can bypass the probate process and ensure a faster and more efficient transfer of assets to their partner. Additionally, a Living Trust allows the person who created the trust to maintain control over their assets while they are alive, and it can be amended or revoked at any time.
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Updating Beneficiary Designations
In addition to creating a Will, Power of Attorney, Healthcare Proxy, and Living Trust, unmarried couples should also update their beneficiary designations. Many financial accounts, including life insurance policies, retirement accounts, and bank accounts, allow individuals to designate beneficiaries. These assets generally pass directly to the designated beneficiary, without the need for probate. It is important that unmarried couples review and update these beneficiary designations to ensure that their partner is named as the beneficiary. If the beneficiary designations are not updated, the assets may go to other family members, even if the couple has been living together for years. Ensuring that both partners are listed as beneficiaries can help avoid complications and ensure that the surviving partner inherits the assets.
Planning for Estate Taxes
While these documents are essential for unmarried couples, it is also important to keep in mind the potential tax implications of estate planning. New York state has an estate tax that may apply to individuals who leave behind a large estate. However, there are exemptions and deductions that can help minimize the tax burden. One of the most important steps unmarried couples can take is to plan for estate taxes and work with an estate planning attorney to minimize the impact of these taxes. Proper planning can ensure that more of the estate passes to the surviving partner, rather than being consumed by taxes. It is also important to consider strategies such as gifting assets during one’s lifetime to reduce the taxable value of the estate.
Reviewing and Updating Estate Plans
Unmarried couples should also review their estate planning documents periodically to ensure that they remain up-to-date and reflect any changes in their circumstances. Life events such as the purchase of property, the birth of children, or changes in health can affect an individual’s estate planning needs. It is important to review and update documents such as Wills, Powers of Attorney, Healthcare Proxies, and beneficiary designations after significant life changes. In addition, it is essential to ensure that all of the necessary legal documents are properly executed and signed to ensure that they are legally valid. Working with an estate planning attorney can provide peace of mind and ensure that the documents are correctly drafted and executed.
The Role of an Estate Planning Attorney
The role of an estate planning attorney cannot be overstated when it comes to unmarried couples. These attorneys have the expertise and knowledge to help couples navigate the complexities of estate planning and ensure that their wishes are legally binding. Estate planning attorneys can also provide guidance on minimizing estate taxes, establishing trusts, and protecting assets from creditors. It is crucial for unmarried couples to seek professional advice when creating their estate plans to avoid costly mistakes and ensure that their estate planning documents are comprehensive and effective.
Estate planning is an essential step for unmarried couples in New York. It ensures that both partners are protected, that assets are distributed according to their wishes, and that the surviving partner has the legal right to make decisions regarding healthcare and finances. By creating a Will, Power of Attorney, Healthcare Proxy, Living Trust, and updating beneficiary designations, unmarried couples can protect themselves and their assets from the complications that can arise without proper planning. Consulting with an estate planning attorney can help couples navigate the complexities of New York’s laws and ensure that their estate plans are legally sound. At Cole, Sorrentino, Hurley, Hewner & Gambino, P.C., we are here to guide unmarried couples through the estate planning process and help ensure their wishes are respected. Contact us today to learn more about how we can assist you with your estate planning needs.