Compared to unmarried couples, those who have legally tied the knot tend to have more legal rights. From being named next of kin in an emergency to being entitled to health insurance benefits, couples gain several financial and personal legal rights once they get married.
So how can unmarried couples find the same, or similar, legal protections? Luckily, there are a few legal documents you and your partner can use to gain many of the same rights typically granted to married couples.
In this post, we’ll cover how properly executed documents like a Power of Attorney, Health Care Directive, Cohabitation Agreement, and Last Will can help you and your partner find the legal protection you’re looking for—despite your lack of a marriage certificate.
Legal Rights: Married Couples vs. Unmarried Couples
Your legal relationship status (e.g. single, common law, married, or divorced) can have a serious impact on your life in regards to your assets, health care, money, and more. To begin, let’s discuss how legal rights can differ between married and unmarried couples.
Although rights may vary depending on your jurisdiction, common rights granted to married couples can include:
- Entitlement to a share of each other’s estate (including finances, property, and assets)
- Exemption from testifying against your spouse in court (although there are exceptions to this right, like when a spouse chooses to testify against their spouse or when a spouse commits a certain crime, such as a crime against their spouse or their children)
- Being named next of kin, which grants you the power to make health care decisions for your spouse if they are incapacitated and unable to make decisions for themselves
- Being named a beneficiary in various health plans, retirement plans, insurance policies, etc. (sometimes, allowing you to collect the benefits when your spouse pre-deceases you)
- Tax benefits (such as not having to pay tax on the portion of your spouse’s estate that is transferred to you after they’ve passed away)
- Entitlement to a fair division of property, assets, and debts in the event of a divorce
- Entitlement to alimony or spousal support payments in the event of a divorce
In some places, unmarried couples who live together and combine their affairs are recognized as common law or domestic partners; in this case, they may receive some or all of the same rights awarded to married couples. It’s important to note, however, that the laws regarding unmarried couples vary from state to state. In states that recognize common law marriages or domestic partnerships, couples may be granted rights such as:
- Tax benefits
- Visitation privileges (such as when your spouse is hospitalized or imprisoned)
- Being named a beneficiary in various health plans, insurance policies, and employee benefits
Many states in America do not formally recognize common law marriages. If you’re in a relationship that exists without legal recognition, it’s likely you’ll either have limited or no rights in relation to your spouse. As a result, unmarried couples may need the help of several legal documents, which we will go over in the sections below, in order to secure similar rights as married couples.
Granting Your Partner Authority to Make Decisions on Your Behalf
When you’re legally married, your spouse is typically entitled to make financial or health care decisions on your behalf. In contrast, an unmarried couple will need special written permission before one partner is able to make legal decisions for the other.
There are many situations in which you may need someone else to act as your representative. For instance, you may be involved in an accident that leaves you temporarily incapacitated and unable to make health care decisions for yourself. In this case, you may need someone to give health care providers authorization to perform a certain medical treatment such as a blood transfusion.
Alternately, if you are required to travel often for work, you may wish to name a representative to handle your financial affairs (such as paying your bills or cashing checks in your name) while you’re away.
When you are unmarried, you can grant these same powers to your partner through documents such as a Power of Attorney and a Health Care Directive. A Power of Attorney can grant your partner the legal authority to manage your affairs regarding real estate, business, finance, legal matters, and more. Further, a Health Care Directive can give your partner the ability to enforce your personal health care wishes should you ever become incapable of doing so yourself.
Without these documents or proof that you and your partner are legally married, professional organizations (such as insurance companies, hospitals, banks, etc.) may not recognize your partner’s authority to act on your behalf. In this case, they may delegate someone else to represent you, who may not know you well enough to act according to your wishes.
Protecting Yourself if the Relationship Ends
When a married couple gets divorced, spouses typically have the right to spousal support payments (if needed) and a fair division of their combined property, assets, and debts. On the other hand, in states that do not recognize common law relationships, unmarried couples generally have few—if any—legal entitlements during a separation.
However, you and your partner can create a Cohabitation Agreement to outline separate and shared assets, debt obligations, and spousal support payments in the event of a break up. It’s recommended that each partner seek independent legal advice while drafting this agreement to ensure it’s fair for everyone. Courts will often honor the terms of a Cohabitation Agreement if they are fair.
With a Cohabitation Agreement, you and your partner can plan to live together, combine your affairs, and still protect yourselves from potential liabilities if the relationship ends. Without this contract, you may end up disagreeing about who is entitled to what at the end of your relationship.
Leaving Your Partner a Portion of Your Estate
Your legal relationship status can also affect your rights to inheritance. For instance, if a husband or wife dies, their spouse is typically entitled to a portion of the deceased’s estate. Although, the size of this portion can depend on several factors such as whether or not there is a valid Last Will or if there are any children who may also be entitled to a portion of the estate.
In contrast, if an unmarried person passes away, their partner is generally not entitled to any inheritance unless specified in a valid Last Will. If a person dies without a Last Will (i.e. intestate), their estate is divided according to successions laws, which vary from state to state. In this case, a judge may determine who will be entitled to inherit the estate (such as the deceased’s next of kin). For an unmarried person, the next of kin may be the deceased’s children or parents.
Unmarried couples can ensure their partners receive a portion of their estate by naming them as a beneficiary in their Last Will and Testament. Without this legal document, your partner may only be able to claim property that they owned with you—or they might not have any legal claim to your estate at all. Naming your partner as a beneficiary in your Last Will is a way to ensure a portion of your estate gets passed on to them when you pass away.
You Don’t Have to be Legally Married to be Legally Protected
Unmarried couples don’t typically have the same legal rights as married couples but there are several legal documents you can create to get similar legal protection, like using a Power of Attorney to grant your partner the authority to make decisions for you or a Last Will and Testament to ensure your partner receives a portion of your estate after you pass away. These documents help to ensure your partner is involved in your legal affairs in exactly the way you want them to be.