It’s common today for couples to live together in a long-term relationship without getting married. The problem with this is that unmarried couples don’t have the same legal rights as married spouses. This is particularly true when it comes to inheritance. However, a prenup or cohabitation agreement can provide a solution depending on your circumstances.
Inheritance Rights
In New York, a surviving spouse has a legal right to one-third of the value of the deceased spouse’s estate unless he or she waives that right in a prenuptial agreement. This protects a spouse from being totally disinherited in a will.
If a spouse dies without a will, the surviving spouse gets everything if there are no children. Where there are children, the surviving spouse gets the first $50,000 plus half of the remaining estate. The other half goes to the children.
Unmarried couples don’t have these rights. The surviving partner is only entitled to an inheritance if he or she is named in the decedent’s will, designated as a beneficiary of a financial account or insurance policy or is a joint owner of an asset with rights of survivorship.
Unfortunately, many people don’t execute a will, or they never bother to update an old estate plan created before the relationship.
Engaged Couples
If a couple is engaged and intends to get married, a prenuptial agreement is an option to protect assets for each other. A prenup is a contract entered into before marriage that specifies what income, assets, and debts are “separate” vs “marital” and how marital property should be split in the event of divorce, separation or death. It can also address spousal support.
The prenup can contractually provide that the surviving spouse is entitled to specific assets. However, a prenuptial agreement does not override a will. Therefore, if the deceased spouse bequeathed that asset to someone else in a will, the surviving spouse cannot contest the will on the grounds that the prenup stated the assets would belong to the survivor. Instead, the surviving spouse must make a claim against the decedent’s estate for breach of contract.
Cohabitating Couples
Where couples don’t intend to get married, a prenup won’t work, but a cohabitation agreement can be used. This is a contract between people living together that addresses financial issues, including the sharing of expenses, the division of property if the relationship ends, and estate rights. A partner can legally promise to leave certain assets to the other, but as with the prenup, a cohabitation agreement does not override a will. If the partner did not include the survivor in his or her will or died without a will, the survivor would have to make a claim against the decedent’s estate for breach of contract to enforce the cohabitation agreement’s terms.
If you are in a long-term relationship and want to ensure you are both protected in the event one of you dies, contact us to discuss the best option for you.
