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Estate planning is essential for all couples, including those who are not legally married. Unmarried couples often face unique legal challenges and may not automatically receive the same rights as married couples upon the death of a partner. Engaging with the dedicated Houston estate planning attorney at Capstone Legal Strategies is crucial to ensure that your rights are protected and that the surviving partner is fully recognized in the probate process.

Legal Considerations for Unmarried Couples in Estate Planning 

In Texas, there are two types of marriages. A formal marriage involves a legal license and ceremony; it’s the traditional type of marriage. However, spouses who can prove there was an informal or common-law marriage may be entitled to some of the same benefits as the formally married spouses.

Establishing a common law marriage gives the same rights of inheritance in the event one partner dies. This type of marriage is available to same-sex couples also. 

There are two ways to establish that a union is actually a common law marriage in Texas, for purposes of estate planning. One way is to formally file a declaration at the courthouse in the county where the two people live. That declaration states that there is an informal marriage between two individuals. The other way involves these steps: 

  • Live together and represent themselves as a married couple.
  • Mutually agree to be married.
  • Both are at least 18 years old.
  • Not be legally married to someone else.
  • Optionally, file a formal declaration of their marriage at a local courthouse.

This status provides the surviving partner with similar inheritance rights as those granted to a spouse in a traditional marriage, assuming the relationship can be legally substantiated.

Key Estate Planning Documents Unmarried Couples Should Consider 

Estate planning is often overlooked by unmarried couples, possibly due to misconceptions that it’s only necessary for the married or the wealthy. However, in the absence of legal marriage, the default laws of inheritance do not recognize unmarried partners. This means that if one partner dies without a will, the surviving partner may not inherit anything, as the estate would typically pass to the deceased’s family members under Texas’ intestacy statutes. Furthermore, unmarried couples are not automatically granted the rights to make medical or financial decisions for each other in the event of incapacitation.

Given these challenges, it’s essential for unmarried couples in Texas to have a clear and legally sound estate plan. Here’s what this involves:

  1. Wills and Trusts: The cornerstone of estate planning is the will. Each partner should have a will that specifies how their assets should be distributed upon their death. This is crucial for ensuring that assets are passed according to the individual’s wishes rather than the state’s intestacy laws. Trusts can also be an invaluable tool, particularly for managing assets on behalf of the surviving partner, potentially reducing estate taxes and avoiding the public process of probate.
  2. Durable Powers of Attorney: This legal document allows one partner to make financial decisions on the other’s behalf in cases of incapacity. Without this, the ability to manage the incapacitated partner’s finances could be delayed as court proceedings might be necessary to grant similar powers.
  3. Medical Powers of Attorney and Advance Directives: A medical power of attorney grants a partner the right to make healthcare decisions if the other becomes incapacitated. Accompanying this, directives to physicians (living wills) specify wishes regarding medical treatment, particularly end-of-life care, ensuring that these preferences are respected even when one cannot communicate them.
  4. Declaration of Guardian in Advance: This specifies who will become the guardian for managing one’s personal and financial affairs if declared legally incompetent to do so themselves, rather than leaving this decision to the courts.
  5. Beneficiary Designations: Certain assets, such as life insurance policies and retirement accounts, are transferred directly to named beneficiaries upon the owner’s death. It’s critical to review and update these designations regularly to ensure they align with current wishes, particularly because these designations supersede instructions in wills and trusts.
  6. Cohabitation Property Agreement: Similar to a prenuptial agreement but for couples who are not married, this contract can outline what happens to property in the event of a separation or death. It can specify who owns what and how property should be divided, which is especially useful since Texas does not recognize common law marriage unless specific criteria are met.

How a Houston Estate Planning Attorney Can Help Unmarried Couples

Proving a common-law marriage can sometimes be complex, especially in the absence of comprehensive documentation. This complexity increases if children are involved or if the deceased partner did not leave a will, leading to an intestate estate. In such cases, other potential heirs could challenge the surviving partner’s rights, necessitating skilled legal intervention.

Our Houston estate planning attorney can provide invaluable assistance by protecting the surviving partner’s interests, guiding them through the probate process, and helping to assert their rights against other claims. This legal support is particularly critical to navigate the complexities of estate laws and ensure that the surviving partner’s entitlements are honored.

Contact Capstone Legal Strategies in Houston Today

Contact our firm today, and let us explain the process of asserting your rights when your spouse has passed away. We will treat you with compassion as you move through the next chapter of your life.

This is not intended to be legal advice. Please consult an attorney.