Unmarried Couples Can Give Each Other the Gift of Legal Certainty This Valentine’s Day

Valentine’s Day is upon us. You’ve remembered the chocolate and the flowers. You’ve got a reservation at your sweetheart’s favorite restaurant. You’ve set up all necessary legal planning to make clear under Idaho law what your partner’s role is if you die or become incapacitated.

If that last sentence seemed out of place because it was unromantic, you are right. But if you have a life partner to whom you are not married (whether same or opposite sex), you should become acutely aware of the legal status your partner will have regarding surrogate decision making, end-of-life decision making, and their status in your estate. Without engaging in some proactive (but relatively simple) legal planning, the results of your incapacity or death could leave your partner not only in grief, but in a financial or logistical nightmare as well.

There are some default legal rules that apply only to married couples. Even in the absence of legal documents appointing a spouse as the person in charge of certain decisions while you are incapacitated, or as the recipient of your estate upon your death, most states have some default laws that kick in to give a spouse at least some limited decision making or beneficiary status. (However, these default rules often are insufficient on their own and should be supplemented with good basic estate planning documents). However, Idaho law does not provide domestic partners of any sort with the same legal default authority.

What does this mean? It means that if you become incapacitated somehow (unable to make your own financial, legal, or medical decisions due to an injury, disease, or other condition), your partner will not be allowed to be your surrogate decision maker for these purposes. He or she will have no say in your medical treatment, no ability to manage your finances for you, and will likely even be blocked from receiving much in the way of detailed information about your medical status and financial accounts and other info. If your partner wants to be given the legal authority to make decisions for you after you have become incapacitated, he or she will need to apply for that authority through the local court system in a guardianship and conservatorship process. That process typically takes about 3 months to fully complete and can cost several thousand dollars.

There is a simple way to avoid all of that. By completing a Health Care Power of Attorney document and a Financial Power of Attorney Document, you can name your partner (along with back up individuals of your selection) to be your surrogate decision maker if you become incapacitated. You can also make decisions in advance about how you want end-of-life decisions made regarding the use or discontinuance of life support.

Similarly, you can name your partner to be the recipient of all or a portion of your estate if you die, and you can name him or her to be in charge of your estate as either your Personal Representative (if you are using a Will) or your Successor Trustee (if you are using a Trust). The decision between a Will and a Trust can also be influenced by having a life partner. You may have good reasons to want to see your estate avoid the formal probate process which by default will typically include your family, even if your partner is named as your beneficiary and the Personal Representative of your estate. A trust administration that avoids the court process of probate often only involves the exact people you have decided it will involve based upon how you’ve structured your Trust.

A good estate planning attorney can give you directions about how to use additional tools like Beneficiary Designations and Pay on Death Accounts to ensure the results you wish to see regarding your partner’s involvement are achieved. These steps can all be combined as an overall estate plan that you can update and modify as the need arises or life circumstances change.

Using a competent attorney to craft a comprehensive estate plan is usually not as complicated or expensive as you might think.

My law firm is currently offering free telephonic, electronic, or in-person consultations concerning creating or reviewing estate planning documents, including living trusts.

Robert J. Green is an Elder Law, Trust, Estate, & Guardianship Attorney and the owner of Kootenai Law Group, PLLC in Coeur d’Alene. If you have questions about estate planning, probates, wills, trusts, powers of attorney, guardianships, Medicaid planning, or VA Benefit planning, contact Robert at 208-765-6555, Robert@KootenaiLaw.com, or visit www.KootenaiLaw.com.

This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.