WALTEMATH LAW OFFICE

Rights of Surviving Spouses

Many couples choose not to be legally married, even if they have been together a long time.  There are both personal and financial reasons for not getting married.  Some of my older clients choose not to marry because they do not want to affect their children’s inheritance. Some of my younger clients would rather not bother with the legalities. Some clients would loose pension or social security benefits if they remarry.

 It is very important for unmarried couples to execute estate planning documents to make their wishes clear concerning the rights and responsibilities of their significant other.  A significant other does not have the same legal rights as a married spouse. A significant other does not have a statutory priority to serve as a personal representative or executor for their significant other’s estate; no statutory right to inherit property from their significant other (which includes no family allowance or an exempt property allowance); no priority to make disposition of the last remains of their significant other, and no priority to act as guardian or conservator for their significant other should he or she become incapacitated or disabled.  There is also no requirement for giving notice of withholding of life support for a non-married significant other.  Anyone may execute documents so that his or her significant other does have these legal rights.

 It is important for an unmarried person to execute a will, a health care power of attorney, a general durable power of attorney and a living will to protect their unmarried significant other. A Last Will and Testament designates a personal representative or the person to be in charge of the estate of the decedent and it designates who will inherit assets from the decedent. Without a will, no assets will pass to your significant other unless they are owned jointly with you or you have named them as a beneficiary. Both a health care power of attorney and a general durable power of attorney name someone to make decisions for you should you become incapacitated or disabled.  Your significant other will not have priority to act for you, upon a disability, if you have not executed a power of attorney naming them as your agent.  If you have no power of attorney, your children will have priority to make these decisions.  If you have these documents prepared, they may prevent unnecessary arguments between the families of unmarried couples and the significant other.

 It may be difficult for unmarried couples to discuss their living arrangements as well as their family dynamics but if you can find a good attorney, she will help you through this difficult process.  You and your significant other will be more comfortable if you plan ahead and have these documents prepared. These documents may be changed or revoked at any time as long as you have the capacity to make decisions for yourself.  

This article was written by Tamra K Waltemath of Tamra K. Waltemath, P.C.  This information is for general informational purposes only and does not constitute legal advice.  For specific questions, you should consult a qualified attorney. Tamra K. Waltemath is an elder law attorney focusing on wills, trusts, estate and trust administration, probate and non-probate transfers, guardianships and conservatorships.  She can be contacted at:  Tamra K. Waltemath, P.C., 3843 West 73rd Avenue, Westminster, CO  80030; 303-657-0360; or visit her website at: www.WaltemathLawOffice.com.