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  • Writer's pictureGregory J. Christiansen

Can ALL Couples, Married or Non-Married, Establish an Estate Plan?

Updated: Apr 23

Can Couples Who Cohabitate Establish an Estate Plan?

In 2000, the United State’s Census Bureau found there are an estimated 5.5 million unmarried couples living together in the United States, up 3.2 million from 1990.  There is nothing to indicate this trend will not continue.

While the courts have recognized the application of estate planning tools for married couples, they have yet to recognize their application in all jurisdictions based on co-habitation couples who have not married.  Unless the state where you live has common law marriages, and you meet the elements set forth in your state, it is difficult to create a unified estate plan with a person you live with who you are not married to.

The situation leaves some undesired consequences.  For example, Peter and  Anne are unmarried cohabitants. While attending a baseball game, Anne is hit by a line drive foul ball, leaving her in a coma.  Peter will have difficulty accessing medical records because of HIPAA privacy protections and/or being appointed Anne’s guardian.  If Anne died from her injuries, her portion of the estate most likely would not pass to Peter but pursuant to their state’s Intestacy Statutes, of which in most cases would exclude Peter.

Consequently, irrespective of your sexual orientation, unmarried couples who are not deemed to be in “common law marriages” will have to resolve these issues by establishing parallel, separate and distinct estate plans, naming one another as their beneficiary, successor trustee, executor, and/or agent.

What about same-sex couples?

In June 2015, the United States Supreme Court issued a historic opinion in Obergefell v. Hodges, 576 U.S. (2015), which requires all 50 states to recognize same-sex marriages.  In his opinion, Justice Kennedy stated: “same-sex couples shall not be deprived of the right to marry because it is a fundamental right inherent in the liberty of every individual.”

The Obergefell decision consequently allows all “married” couples, whether heterosexual or same-sex, to be treated the same in dual spousal adoptions, child custody, marital property, spousal death benefits, inheritance rights through intestacy, contract rights, priority rights in guardianships, etc. This decision allows all “married” couples defined by the law to utilize estate-planning instruments to govern their estate.


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