Estate Planning for Unmarried Couples: What You Must Know

Many people believe estate planning is only for married couples or the very wealthy. However, this is a common misunderstanding. In fact, anyone who has assets or family members they care about should have an estate plan in place, including unmarried couples.

Without the automatic legal protections that marriage provides, your partner could be left with nothing if you pass away without a proper plan in place.

At Davidson Estate Law, our experienced attorney offers compassionate, personalized guidance to make sure your wishes are clearly documented and legally sound. For over 25 years, our firm has helped unmarried couples throughout the San Francisco Bay Area understand the estate planning and probate process and create comprehensive estate plans that fit their needs. 

Why Unmarried Couples Need an Estate Plan

When you are married, the law provides a built-in safety net. Spouses have automatic inheritance rights and are often the default decision-makers for medical and financial matters if their partner becomes incapacitated. Unmarried couples, however, do not have these same rights, regardless of how long they have been together. 

Without a formal estate plan, your assets will be distributed according to state intestacy laws. These laws prioritize biological family members—such as parents, siblings, or even distant relatives—completely bypassing your partner. Imagine the home you share, your joint bank accounts, and your personal belongings being passed to a relative you hardly know, instead of to the person who has been by your side for years. This can create significant emotional and financial distress for your surviving partner.

A good estate plan allows you to name your partner as your beneficiary and decision-maker. It is the only way to make your intentions legally binding and protect the future you have built together. 

Essential Documents for Unmarried Partners

To protect your partner and your assets, you should create certain fundamental documents. These legal tools work together to create a comprehensive estate plan that reflects your relationship and wishes. 

Revocable Living Trust

A revocable living trust is one of the most powerful tools for unmarried couples. This document allows you to transfer your assets into a trust that you control during your lifetime. You can name your partner as the successor trustee and the primary beneficiary. When you pass away, the assets in the trust are transferred directly to your partner, bypassing the public and often lengthy probate court process. This keeps your affairs private and gives your partner faster access to the assets they need. 

Will 

A will is another important document, even if you have a trust in place. A will can name a guardian for any minor children and can act as a backup for any assets not placed in your trust. In your will, you can explicitly state that you want your partner to inherit your property. Without a will, the state's succession laws take over, which, as mentioned, do not recognize unmarried partners. 

Durable Power of Attorney for Finances 

What happens if you become unable to manage your own finances due to an illness or injury? A durable power of attorney for finances lets you appoint someone, such as your partner, to make financial decisions on your behalf. This person, known as your agent, can pay bills, manage investments, and handle other financial matters for you. Without this document, your partner may have to go to court to obtain the authority to help, a process that can be costly and time-consuming. 

Advance Health Care Directive 

An advance health care directive allows you to name an agent to make medical decisions for you if you cannot make them yourself. For unmarried couples, this is vital. Without it, medical providers may turn to your closest blood relatives for decisions, potentially excluding your partner from being involved in your care or even from visiting you in the hospital. This document also allows you to specify your wishes for end-of-life care, relieving your partner of a heavy burden. 

California Laws for Unmarried Couples

California law does not automatically grant property or inheritance rights to unmarried partners. The state does not recognize common-law marriage, so no matter how many years you have lived together, you are not considered spouses under the law. This makes having a written estate plan even more important for couples in the San Francisco Bay Area. 

One area where California law offers some recognition is through a "Marvin" claim, based on the famous case of Marvin v. Marvin. This allows an unmarried partner to sue for a share of property acquired during the relationship, arguing that there was either an express or an implied agreement to share assets. However, these claims are expensive, emotionally draining, and far from guaranteed. Relying on a potential lawsuit is a poor substitute for proactive planning. 

California's intestacy code is unambiguous. If you die without a will or trust, your assets go to your next of kin. Your unmarried partner is not considered next of kin. By creating a formal estate plan, you are taking control and making sure California's default rules do not dictate what happens to your property. A trust, will, and power of attorney are the definitive ways to recognize your relationship and honor your wishes. 

Owning Property Together

How you and your partner own property has a significant impact on what happens when one of you passes away. In California, unmarried couples can each hold title to real estate in several ways. These typically include the following.

Tenants in Common

This is the default way for unmarried individuals to own property together. Each person owns a specific percentage of the property (e.g., 50/50, 60/40). When one partner dies, their share does not automatically go to the surviving partner. Instead, it passes to the beneficiaries named in their will, or, in the absence of a will, to their legal heirs. This could mean your partner suddenly co-owns your home with one of your relatives. 

Joint Tenancy with Right of Survivorship 

This form of ownership includes a "right of survivorship." When a joint tenant dies, their share of the property automatically transfers to the surviving joint tenant(s), thereby avoiding the need for probate. This can be a valuable tool for unmarried couples, but it is not a complete solution. It only applies to the specific property held in joint tenancy and does not cover other assets or address incapacity planning. 

Placing your shared home and other significant assets into a revocable living trust is often a better approach. It still enables you to avoid probate while offering greater flexibility and control over all your assets. 

Estate Planning Attorney in Oakland, California

One of the most meaningful things you can do is to establish plans for your loved ones' care and financial security. For over 25 years, our attorney at Davidson Estate Law has served as a reliable source of legal support and compassionate counsel for families across the San Francisco Bay Area, including Oakland, Walnut Creek, Berkeley, San Francisco, El Cerrito, and Alameda, California.

We appreciate how personal these matters can be, and we are ready to assist you. Whether you need to draft a will, create a revocable living trust, manage a loved one's assets, or deal with probate court, we invite you to connect with us. Call today to schedule a consultation.