Florida law does not provide unmarried couples with the inheritance protections and automatic decision-making authority it provides to married couples. Unmarried couples have virtually no rights under Florida statute. Consequently, many of those rights can be created with proper estate planning documents. Unmarried couples, in particular, must take practical steps to plan for the future. Unmarried couples should make estate planning a priority.
Estate planning in Florida is essential to guarantee the estate distributes property and assets according to the deceased person’s wishes. If a person should pass away without executing a Last Will & Testament, or Trust, his or her property will be distributed in accordance with Florida’s Intestacy law. Essentially, a married couple is treated as a single entity under the law. Domestic partners and others in non-traditional relationships do not count as heirs under Florida probate law. Therefore, unmarried partners do not have access to these same protections. 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. Unmarried couples can also consider holding certain assets, such as real estate or bank accounts, in joint ownership with rights of survivorship.
It is estimated that the number of cohabiting unmarried couples or partners has increased by 88% between 1990 and 2007, and the committed unmarried couple is the fastest growing segment of the relationship population in the United States. This trend is expected to continue, as modern society struggles to find continuing long-term value in marriage, which is the principal legal fiction used to extend a legal relationship, which began by blood only but was expanded to adoption, to people who were not otherwise related by blood or adoption, i.e., by legal marriage, for purposes of the laws of descent and distribution.
While working with unmarried partners on the personal or human side of estate planning is not too dissimilar from working with married partners on their estate planning, current law treats these two groups, i.e., married v. unmarried, entirely differently on the legal side of estate planning. Again, the two principal differences are the laws of descent and distribution, both testate and intestate (the default rule for people who die without a valid Last Will & Testament which transfers their entire estates) and the laws of marriage, which imbues a married surviving spouse with preferred rights in a whole panoply of areas, including property and estate administration rights and responsibilities, as well as in personal care and taxation.
On the one hand, the lack of current applicability of the legal default rules of legal relationship (unmarried and otherwise unrelated people are strangers in the law) and descent and distribution give estate planners a tabula rasa, but there is no default rule safety net. For this reason, many experts in the field call estate planning for unmarried couples “the wild, wild west of estate planning.”
Estate planning must now focus on the unique problems and issues that unmarried couples and their estate planners face. There are now numerous factors to consider such as:
- The legal atmosphere for an unmarried couple is different than for married couples-in the world of married couples, the legal institution of marriage eventually came with its preferential rights for surviving spouses by way of the laws of descent and distribution, in which the surviving spouse enjoys in virtually every set of intestacy laws throughout the nation. The legal atmosphere of unmarried partners is without these very effective default rules.
- Why unmarried couples’ estate planning needs to be done in an expedited way, discussing the risks attendant to no protection against the HIPAA privacy protection.
- Legal Status-putative or common law spouses-what about agreements or negating post-death attempts to claim status as a common law or putative spouse, or palimony.
- Property Agreements-Attorneys, and their clients should discuss the structure of a property agreement between unmarried partners and creative use of entities.
- Differences in the income and transfer tax treatment between married and unmarried couples.
- Domicile and Governing Law-This can become particularly acute if the couple lives part-time with each other or separately and part-time together in different jurisdictions.
- Life and Health Insurance; Other Benefits-should be discussed as well as the challenges in this area, including County Domestic Partner forms-for Insurance purposes and employment benefits, etc. and Domestic Partnership Agreements.
- At the Outer Edge-Adult Adoption; visitation agreements, etc.
The foregoing is a brief and very general overview of the various initial steps to consider when preparing an estate plan for an unmarried but committed couple in Florida, whether part-time or full-time residents.
If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.