Marriage Is Not A Substitute For An Estate Plan

On several occasions when I have met with unmarried couples, they have interrupted the initial pleasantries, taken a deep breath, looked at me intently and asked: “Couldn’t we skip all this planning and just get married?” Immediately, visions of horse-drawn carriages on cobblestone walkways and flying rice jump into my head. I smile at the thought of family and friends gathered around the happy couple and wishing them well. No doubt there are many factors to consider when deciding whether or not to get married, but planning your estate should not be one of them.

Generally, planning your estate should not determine your marital status for two reasons. First, if you sit down with an estate planning attorney, your attorney can create a plan specifically designed for you that will allow your partner to inherit from you. Currently, regardless of the length of your relationship, if you are not married, your partner does not have any legal right to inherit from you unless you specifically include him or her in your estate plan. As many households require two incomes for financial security, if you have not included your partner in your estate plan, he or she may face financial difficulties in the event of your death. They will also potentially lose items of significant sentimental value. Property, including your home and the contents of your home, may suddenly belong to someone else because the asset was titled in only your name.

Second, marriage alone does not resolve the need to plan your estate because it may not sufficiently provide for your spouse upon your death. If you have not created an estate plan, North Carolina has created a plan for you. If you are married and do not have a will, you have by default consented to North Carolina’s plan for your family. Unfortunately, North Carolina’s plan may not be the best choice.

Let’s assume that you have a spouse and two children. According to North Carolina’s law, your spouse will get the first $30,000 that passes through probate. I always think of this amount as equivalent to the car, which is good, because your spouse will need a car. Your spouse then will receive one-third of the balance of your property that passes through probate and your children will receive the other two-thirds equally. This can create great concerns if your children are minors or if your spouse needs your assets for his or her living expenses and care.

If North Carolina’s plan does not sound like the best alternative for your family, now is the right time to plan your estate. As completely unromantic as it sounds, one of the most loving acts you can do for your partner, whether you are married or not, is to establish a plan that provides for them in case something unexpected were to happen to you. These are not the types of decisions you want to leave in someone else’s hands.

Start by finding an estate planning attorney you respect and trust. After you meet with them, you should be confident that your partner will not be turned away from your hospital bed because he or she is not considered “family,” that your partner or spouse will be provided for, that the money you leave for your spouse and children will not be eaten up by taxes and administration fees, and, most importantly, that you will have planned your estate and performed a final act of kindness for your family.


Originally published in Southern Neighbor, November 2011

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