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Rights to Property When Your Unmarried Partner Dies

Key Takeaways:

  • Generally, the law does not recognize the inheritance rights of unmarried couples.
  • Despite the law, unmarried couples who buy real estate together can receive a portion of the property after their partner's death if they hold the property together as joint tenants or tenants-in-common.
  • To ensure that your unmarried partner gets property after your death, your best course of action is to leave them property in your last will and testament.

When one partner in a marriage passes away, the surviving spouse normally inherits the deceased spouse’s property. But when a couple is unmarried, the legal rights of the surviving partner are much less clear.

This article explains the property rights of the surviving partner in an unmarried couple (also known as a cohabiting couple). This issue is a complicated one that not only involves family law, but also raises issues concerning estate planning. In addition, every jurisdiction in the country has different laws governing these issues. Because of the importance and complexity of the issues involved, if your boyfriend, girlfriend, or partner dies, it’s best to discuss your legal rights with a family law attorney.

The Inheritance Rights of Unmarried Partners

People commonly inherit property in two ways. First, you can inherit property if a person lists you in their last will and testament (“will”), a legal document where an individual declares their wishes on how they would like to distribute their property upon their death.

If your partner didn’t have a will, the state’s intestacy laws will decide who gets the property. (“Intestacy” simply means that a person died without a will.)

Intestacy laws do not recognize unmarried couples. As such, the surviving partner in an unmarried couple generally doesn’t have rights to their partner’s property. This means if a couple goes through a breakup or if one of them dies, they won’t be entitled to any of their partner’s property unless:

  • The couple specifically agreed to have joint ownership of their property
  • The deceased partner had a will giving the property to their partner
  • The couple has a state-recognized common-law marriage.

I Want to Buy Real Estate with My Partner. What Are My Options?

You can have joint ownership rights to property with your boyfriend or girlfriend if you acquire the property either as tenants-in-common or joint tenants.

Tenants-in-common: If an unmarried couple owns property as tenants-in-common, then each couple will have a share equal to the amount they contributed.

You should note that if your partner dies, you will only retain your share of the property. Your partner’s share will be part of their estate and will be distributed according to the state laws, or the person’s will.

Joint tenants: Unlike tenants-in-common, joint tenancy will allow you to get all the property in the event of the other tenant’s death. Here, again unlike a tenancy in common, both you and your partner will have equal shares of the property regardless of your initial contribution.

The Property Is Under My Partner’s Name. Do I Have Any Rights If They Die?

It depends. You can retain the property if your partner left it to you in a will. Otherwise, it may be difficult.

Do You Have a Common Law Marriage?

If you and your partner held yourself out to the world as a married couple, intended to get married, and lived together for a specified time, you may have had a common-law marriage. If your state recognizes common law marriages and you fulfill the requirements, then you will have the same rights as if you were legally married to that person.

If you are in such a situation and your common-law spouse dies, then you may be able to claim inheritance depending on the laws your state follows.

We Had a Joint Bank Account. Who Gets the Money?

It depends. If you and your partner chose “joint with right of survivorship” when you opened the account, you will own the funds after your partner’s death. Most joint accounts have this designation but read the fine print on your account paperwork. Even better, you won’t have to wait to get the money. When a person leaves property in a will, it must go through a process called probate. During probate, a judge looks over the will and hears any objections to it. But joint bank accounts with survivorship don’t have to go through probate.

We Had a Cohabitation Agreement. Will This Affect My Property Rights?

Many unmarried couples sign cohabitation agreements. A cohabitation agreement is a contract that spells out what happens to a couple’s property in the event of a breakup.

Cohabitation agreements can address what should happen to property if someone dies. However, the will is the primary legal document on this point. If your cohabitation agreement and your loved one’s will say different things, you will have to convince the probate court to consider the agreement. This will be a difficult task. You will almost certainly need the help of a probate attorney.

How Can I Make Sure That My Partner Gets Money and Property After I Die?

Cohabiting couples can use many methods to leave property to one another. You can create a living trust in addition to will. You can name each other as beneficiaries on your life insurance policies, retirement accounts, or investment accounts.

There are a variety of ways to make sure that your partner is taken care of after your death.

Get Help Understanding Your Property Rights After Your Partner Dies

Dealing with financial issues after the death of a loved one can make the loss hurt even more. If you have questions about your property rights after your partner’s death, you should get legal advice from an experienced attorney. Use the LawInfo directory to find a family law attorney near you.

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