Estate planning is essential for “non-traditional” couples in Florida who have opted for long-term togetherness without entering a formal marriage.
As reported by The Pew Research Center, marriage rates have been steadily slipping, while rates of cohabitation are on the rise, reaching about 18 million as of two years ago, representing a 30 percent spike in just a decade. About half of those living with a romantic partner are 35 or younger, but a growing number (currently almost one-quarter) are over 50. This segment increased by 75 percent over the last 10 years.
While estate planning is important at any age (life is often unpredictable, if nothing else), those over 50 must make it a priority to ensure their rights are protected and wishes are followed in the event of sudden incapacity or death. Blended families too have special circumstances to consider, as do single parents. Rules and advantages that apply to married spouses in Florida estate law won’t automatically apply to unmarried cohabitants. That means extra planning is required. Trying to tackle it yourself may be cheaper than hiring an estate planning attorney, but it will cost you more in the long-run when there are inevitable oversights on legal technicalities – of which there will inevitably be more in non-traditional households.
Some considerations you should not overlook include:
- Ensure wills and trusts properly distribute estate assets. You cannot disinherit your spouse in Florida, per the Florida Uniform Disposition of Community Property Rights at Death Act, F.S. 732.216-732.228.The statute stipulates that while Florida is not a community property state, at least one-half of all a married couple’s community property will be given to the surviving spouse, regardless of what was written in decedent’s last will or trust says. Per the 1997 Florida Supreme Court ruling in Snyder v. Davis, homestead property can’t be devised if there is a surviving spouse or minor child. However, if there is no marriage or the minor children aren’t legally yours, there is no such guaranteed financial protection or right to claim those assets. This could partially be addressed by joint titling, but that may not be smart for some with poor credit or a lot of debt. A good Orlando estate planning lawyer will typically recommend naming your partner as a beneficiary of certain assets in your revocable living trust and last will and testament. A joint revocable trust is often especially desirable because any issues are resolved through trust administration (private), as opposed to probate litigation (public).
- Check to be certain ownership of real property is appropriately titled. Many couples who cohabitate share the financial burdens of a mortgage and other living expenses. However, unless both parties are named on that title or the couple is married, a surviving spouse not listed on the title has no right to inheritance of that property. Getting both names on deed, the mortgage or note is one way to resolve it.
- Make sure your partner has rights. Florida rules of intestacy outline inheritance rights and decision-making power for spouses, children and parents. However, unmarried partners or children not formally adopted aren’t entitled to those same rights. Wills, healthy care proxies and durable powers of attorney prepared by your estate planning lawyer will make it clear how you want matters of your health and finances handled if you die or can’t make decisions for yourself.
- Name guardians for your children. If you’re a single parent, it’s important to outline your wishes for your child’s care if you die. If the other parent is in the picture and fit, he or she would automatically assume all parental rights. This is true for both married and divorced couples, and usually for never-married biological parents. However, if your ex isn’t in the picture, you need to designate a clear plan for your child’s ongoing care and financial support. This is also imperative for grandparents raising grandchildren (about 2.9 million nationally, according to Pew).
Other situations that may require a more unique estate planning approach include long-term same sex relationships, distribution of assets to non-biological or non-adopted children and third-party beneficiaries of significant assets or inheritances.
Contact the Central Florida estate planning attorneys at The Chidolue Law Firm, serving Orlando and Lake Mary, by calling (407) 995-6567 or email us.
Snyder v. Davis, Sept. 18, 1997, Florida Supreme Court
More Blog Entries:
ORLANDO ESTATE PLANNING AND REVISION CRITICAL UNDER NEW TAX LAWS, Feb. 14, 2018, Orlando Estate Planning Attorney Blog