Why unmarried couples need an estate plan
Many legal rights that married couples receive automatically—inheritance priority, medical decision authority, and certain tax benefits—do not extend to unmarried partners. Without explicit documents, state intestacy laws and hospital policies may prevent a surviving partner from inheriting assets, accessing medical records, or making care decisions. In my practice I’ve seen otherwise-stable households face costly court fights and months-long delays simply because key documents were missing.
Authoritative guidance from the IRS and consumer protection agencies emphasizes planning and clear beneficiary designations (IRS; Consumer Financial Protection Bureau). Laws vary by state, so accurate planning combines federal tax awareness with state-based document and title choices.
Core estate planning tools for unmarried couples
Below are the primary documents and strategies most unmarried couples should consider. Each tool solves a different gap that statutory marriage would otherwise fill.
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Wills. A will states who inherits your property and can name a guardian for minor children. For unmarried couples, a will is usually the single most important document to ensure your partner is provided for.
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Revocable living trusts. A revocable trust can hold assets so they pass to your chosen beneficiaries without probate. Trusts also allow you to set conditions (for example, a time-based distribution to a surviving partner or instructions on property use).
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Powers of attorney (financial and medical). Durable financial and healthcare powers of attorney let a named partner act for you if you’re incapacitated. Without them, a partner may need a court-appointed conservatorship or guardianship to manage finances or medical needs.
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HIPAA authorizations. A separate HIPAA release lets medical providers share protected health information with your partner; hospitals will often refuse access absent this form even when a medical POA exists.
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Advance directive / living will. These documents record your wishes about life-sustaining treatment and help guide healthcare teams and family during difficult decisions.
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Beneficiary designations. Retirement accounts, IRAs, 401(k)s, life insurance policies, and some bank/brokerage accounts pass by beneficiary designation. Make sure your partner is correctly named and the beneficiary form matches your estate plan. A mismatch between a beneficiary form and your will/trust can override the will.
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Joint ownership and title choices. How property is titled matters: joint tenancy with right of survivorship, tenancy in common, and community property (where available) have different consequences. Tenancy by the entirety, which provides creditor protection and automatic survivorship, is reserved for married spouses in many states and is not available to unmarried couples.
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Transfer-on-death (TOD) and payable-on-death (POD) designations. For real estate and certain accounts, state-specific TOD deeds or POD account designations allow assets to pass directly to a partner without probate.
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Digital asset planning. Password managers, a written inventory, and explicit access instructions help survivors manage online accounts, crypto, social media and digital photos. See our guide on Digital Asset Estate Planning for details.
Practical checklist — documents to create and review
- Will naming your partner (or explaining why you chose other beneficiaries) and naming an executor.
- Durable financial POA naming your partner as agent.
- Durable medical POA and HIPAA authorization for healthcare access.
- Advance directive / living will with your treatment preferences.
- Beneficiary forms on all retirement, insurance, and investment accounts.
- Trust if you want to avoid probate, control cash flow to heirs, or protect children’s interests.
- Property title review — change to TOD/POD or joint title only after understanding creditor and tax effects.
- Guardianship designation if you have minor children.
- Digital asset inventory and access instructions.
- Annual review or when major life events occur (move, birth, divorce, major asset purchase).
For a short guide to the baseline documents most people need, our Essentials post lists the must-have paperwork.
Common pitfalls and how to avoid them
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Assuming legal rights exist. Intestacy rules differ by state; absent a valid will or trust, an unmarried partner may receive nothing. Don’t rely on informal arrangements.
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Using joint ownership as a substitute for estate planning. Titling property jointly gives survivorship rights but can expose assets to a partner’s creditors or create unintended tax consequences. Consider whether joint title matches your long-term goals.
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Forgetting to update beneficiary forms. Beneficiary designations supersede wills for many assets. Review them after marriage-like events (marriage, birth of a child, divorce from others, or death of a named beneficiary).
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Not preparing for incapacity. Without POAs and HIPAA releases, your partner may lack authority to act or even to receive medical information.
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Overlooking state-specific tools. Some states offer domestic partner registries, hospital visitor statutes, or TOD deed options. Work with a state-licensed attorney to use these properly.
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Mismanaging blended-family issues. If you or your partner have children from prior relationships, decide how property should flow to children versus the partner—trusts often help structure those wishes.
Tax and financial considerations — what differs for unmarried couples
Unmarried partners do not qualify for the unlimited marital deduction for federal gift and estate tax purposes. That means transfers at death or gifts during life can be treated as taxable transfers without the spousal exemption. Tax rules and exemption amounts change over time; the IRS explains estate and gift tax basics (irs.gov). Because of this, large-net-worth couples should consult a tax attorney or CPA when designing trusts, titling assets, or making gifts.
Retirement accounts and employer benefits often treat the account owner as the primary decider; some employer plans may default benefits differently for non-spouse beneficiaries. Check plan documents and consider beneficiary designations, survivorship options, and potential penalties for early withdrawal.
State law nuances to watch
Estate law is highly state-dependent. Key variations include:
- Community property vs. common law states: Community property rules affect how property acquired during a relationship is owned and taxed.
- Probate procedures and timelines: Probate costs and duration vary widely; trusts or TOD deeds can reduce probate exposure.
- Recognition of domestic partnerships/civil unions: A few states or localities provide limited rights to registered domestic partners; verify what those rights include.
Always confirm state-specific rules with a licensed estate attorney in your state.
Real-world scenarios (short examples)
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Medical incapacity: A partner was hospitalized; without a medical POA and HIPAA release the other partner was blocked from medical decisions and access to records. A durable medical POA and HIPAA authorization would have prevented this.
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Inheritance surprise: One partner died intestate and family members contested the surviving partner’s claim. The court awarded assets according to state law, which left the partner with little despite a long-term relationship. A will or trust would have clarified the decedent’s intent.
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Vacation home planning: A client used a revocable trust and specific language to ensure their partner could live in a vacation home for life while preserving the property’s ultimate transfer to children. Trusts are particularly helpful in blended-family situations.
Steps to get started — a simple action plan
- Inventory your assets: bank accounts, retirement plans, life insurance, real estate, digital accounts.
- Review & update beneficiary forms.
- Create a durable financial POA, medical POA, HIPAA authorization, and a will.
- Consider a revocable trust if you want probate avoidance or conditional distributions.
- Talk to an estate planning attorney—especially if you own a business, have children from prior relationships, or have significant assets.
- Revisit your plan every 3–5 years, or after major life changes.
For a periodic review checklist, consult our Estate Planning Checkup guide.
How professionals can help
An estate planning attorney will draft state-compliant documents, explain titling and beneficiary interactions, and advise on tax-minimizing strategies. A CFP® or CPA can evaluate tax consequences and help with strategy for retirement accounts and gifting. Working together, these professionals create a plan that fits your goals and local rules.
Additional resources and references
- IRS — Estate and Gift Taxes: https://www.irs.gov/businesses/small-businesses-self-employed/estate-and-gift-taxes (for federal tax rules and guidance)
- Consumer Financial Protection Bureau — Planning for End of Life: https://www.consumerfinance.gov/consumer-tools/estate-planning/ (for consumer-facing planning tips)
Internal resources you may find helpful:
- Essential Estate Planning Documents Everyone Should Have — https://finhelp.io/glossary/essential-estate-planning-documents-everyone-should-have/
- Digital Asset Estate Planning: Passwords, Crypto and Cloud Photos — https://finhelp.io/glossary/digital-asset-estate-planning-passwords-crypto-and-cloud-photos/
- Estate Planning Checkup: Documents to Review Every Five Years — https://finhelp.io/glossary/estate-planning-checkup-documents-to-review-every-five-years/
Final thoughts and disclaimer
Estate planning for unmarried couples is about control, clarity and compassion: control over where assets go, clarity about healthcare and guardianship decisions, and reducing emotional and financial strain for the person left behind. In my experience, couples who create the key documents and review them regularly avoid the majority of disputes I see in probate practice.
This article is educational and does not constitute legal or tax advice. Laws vary by state and can change. Consult a licensed estate planning attorney and tax professional before signing legal documents.
