Estate planning is a critical process for everyone, but it’s especially important for unmarried couples who may not have the same legal protections as married couples. While a will forms the cornerstone of most estate plans, its role becomes even more pivotal when navigating the complexities faced by nontraditional families. Here’s a quick start guide to help unmarried couples understand the nuances of estate planning and how to effectively manage their affairs.
The Role of a Will in Estate Planning
A will is the foundation of any estate plan. It outlines how assets should be distributed and appoints a personal representative to manage the estate. However, assets passing through a will are subject to probate, which can be a lengthy and public process. Despite various strategies to avoid probate, certain personal belongings, such as clothing and personal items, often cannot be managed through joint ownership or beneficiary designations. Without a well-drafted will, an unmarried partner may face emotional and financial uncertainty.
In Massachusetts, if someone dies without a will, or if their will is deemed invalid, the estate will pass to the decedent’s legally married spouse, children, or biological relatives. If no relatives can be located, the estate will be acquired by the Commonwealth of Massachusetts. Unfortunately, there is no legal provision for an unmarried partner, regardless of the length of the relationship. Thus, it is crucial for unmarried couples to create a will to affirm their relationship and ensure their wishes are honored. If there is significant concern about potential disputes with biological families, marriage may offer additional legal protection, as a spouse would be entitled to inherit even if a will is invalidated. See G.L. c. 190B, § 2-102.
Understanding Wills and Their Types
A basic will typically covers the distribution of both tangible and intangible property and names a personal representative. For those wishing to bypass probate, a pour-over will can transfer the estate into a pre-existing trust, which keeps asset distribution private and out of public scrutiny. See G.L. c. 190B, § 2-511. It’s important to draft a will with clear and direct instructions, avoiding vague language that might lead to disputes. Such language, known as “precatory” language, should be avoided to prevent potential will contests.
For couples contemplating marriage, it’s vital to know that any will executed before marriage may be automatically revoked unless it includes a specific provision to remain valid. See G.L. c. 190B, § 2-301. To address this, include language in the will stating that it is made in contemplation of marriage and will remain effective regardless of marital status.
Key Considerations for Unmarried Couples
- Personal Property: The will should clearly outline how personal property is to be distributed. This prevents such property from being used to settle debts or administration costs. Consider naming members of both partners’ families as beneficiaries to avoid disputes over personal items.
- Memorandum: A will may reference a memorandum to guide the distribution of personal property. While this memorandum can be updated frequently, it must exist at the time the will is executed to be enforceable. See G.L. c. 190B, § 2-510. Items specified in the will itself are more likely to be upheld in court.
- Children: If minor children are involved, the will should name a guardian and an alternate. This nomination does not terminate the parental rights of another legal parent but gives the partner standing to challenge unsuitable placements. See G.L. c. 190B, § 5-202. Consider establishing trusts or uniform transfers to minors accounts to manage assets until children reach adulthood. See G.L. c. 201A.
- Requiring Cohabitation and in terrorem clauses:** For unmarried couples, specifying conditions for bequests, such as requiring cohabitation at the time of death, can prevent complications. An in terrorem clause may also be useful to discourage challenges to the will. See G.L. c. 190B, § 2-517.
- Pets: Pets are family too. Include provisions for their care, possibly through a pet trust, which Massachusetts law allows under G.L. c. 203E § 408. Even if a pet trust isn’t feasible, specify what should happen to pets in the will to avoid disputes.
- Personal Representative: Consider appointing your partner as the personal representative of the estate. This role grants control over the estate but should be carefully considered if the partner might not manage the estate effectively. Co-personal representatives can be appointed, and an alternate should always be named. See G.L. c. 190B, § 3-203.
- Execution and Burial Instructions: Ensure your will is executed with proper formalities, including signatures from witnesses and notary public, to prevent challenges. Burial instructions should also be included to avoid disputes over final arrangements. Written instructions should be signed and notarized to ensure they are followed.
- Probate and Will Contests: Probate involves transferring assets through court processes, which can be time-consuming and costly. While it provides an orderly way to manage debts and distribute assets, it is also public, which may be a concern for those valuing privacy. Wills are more susceptible to challenges than other forms of asset transfer, so ensuring your will is robust and well-drafted is crucial.
Estate planning is a vital step for unmarried couples to secure their future and protect their partners. By understanding and addressing these considerations, you can create a plan that reflects your wishes and provides for your loved ones effectively. If you need guidance in drafting or reviewing your will, consult with an experienced estate planning attorney to ensure that your plan is comprehensive and legally sound. Contact my office today to schedule your free consultation by calling (781) 761-2148
