Marriage has its financial advantages, particularly when it comes to taxes, but also when it comes to inheriting assets. In most jurisdictions, marriage partners have certain rights such as the ability for property to be transferred to the spouse upon death without having to go through probate.
However, couples who may live like spouses but are not married through common-law or by statute may have to make arrangements to ensure that their partner does not lose property and is taken care of in the event that the other dies since the partner is not treated as a bloodline heir. However, there are times when the cohabitating partner may be an exception to this rule.
The living spouse believed in good faith that the couple was married.
In many jurisdictions, if the spouses or the living spouse believed in good faith that the couple was lawfully married, then the spouse may be granted spousal inheritance rights. For example, couples that have destination weddings may not follow all the procedures for a valid wedding or fail to follow up with a domestic civil ceremony. One of the parties may have been under the age of consent when the marriage happened, or maybe the couple had a religious wedding that was never made legally official. If the living spouse can prove that he or she truly believed he or she was legally married to the deceased, then the courts may declare that the cohabitating partner can inherit as a spouse would.
A Proper Estate Plan Can Help Ensure Property is Passed to a Cohabitating Partner
In any event, cohabitating partners can ensure that their loved one inherits their estate upon their death by making provisions in a will or trust for the surviving partner to receive all of the property a spouse would normally receive. This may not keep the property from going through probate, but it does ensure that property goes to whom it is intended.
Say, for example, a cohabitating couple bought a house thirty years ago. They have lived in it and paid off the mortgage. However, only one partner is on the deed. When this partner dies, the house will pass to his or her estate, namely the legal blood relatives. Say, for the purpose of this example, it’s the partner’s children. Even though the other partner lived in the house and helped to pay the bills all of these years, the house will legally be passed down through the bloodline of the other partner who was on the deed.
However, this can be avoided if the partner simply bequeathed the share of the house to the surviving partner in an estate plan. With that said, if you are cohabitating, it’s always best to work with a qualified estate attorney to ensure that your partner is cared for when you pass on. If you need help getting started, contact our Brandon, Florida, trusts and estates lawyers at (813) 438-8503 to set up a consultation.