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Unmarried Couples Can Never Be Too Specific About Bequeathing Assets To Each Other


In many regards, marriage is just a piece of paper.  Married couples and unmarried couples are more alike than different.  You live together and share life experiences, manage finances together and build relationships with each other’s family of origin, and perhaps even have children of your own together.  Most of the time, society treats couples as couples, whether or not they are legally married to each other.  To the probate court, though, a lawfully wedded spouse is very different from a domestic partner.  The decedent’s surviving spouse can claim an elective share of the decedent’s estate, even if the decedent tried to disinherit them, but if the spouse was not married to their domestic partner, the partner has no rights to the decedent’s property.  Of course, when you write a will, you can leave your property to anyone you choose, including but not limited to your domestic partner, extended family members, friends, and charities.  A Washington DC estate planning lawyer can help ensure that your partner inherits the assets that you intend for them to inherit.

Court Refuses to Allow Decedent’s Partner to Inherit Her Interest in Family-Owned Real Estate Property

In the 1980s, Diane inherited a 21 percent ownership interest in a commercial real estate property in Falls Church.  The property had belonged to her father, and in his will, he divided ownership of the property among Diane, her brother Paul, and several other family members.  Later in life, she set up a revocable trust with herself as the beneficiary and transferred her interest in the real estate property to the trust.  In 2010, after being diagnosed with cancer, Diane wrote a will and amended the revocable trust document.  She named her domestic partner Wayne as the personal representative of her estate.  She also indicated that, when she died, the property of her trust would pass to a trust with Wayne as its beneficiary.  Diane’s will refers to Wayne as her “friend,” and in the probate court proceedings, he referred to himself as her “longtime companion” and “significant other.”  When Diane died in 2012, her interest in the property was worth about $1.6 million.

During the probate of Diane’s estate, Wayne ran into trouble getting the property from Diane’s trust transferred to a trust for him.  The problem was that the 1984 partnership agreement regarding ownership of the family’s real estate property gave the other partners a right of first refusal if any partner were to try to transfer their interest to a third party.  The probate court ruled, and the appeals court affirmed, that Diane’s brother Paul had the right to stop Wayne from getting a share of the ownership.  A possible solution to this problem would have been if, when Diane was alive, she had allowed the rest of her family to buy out her share.  She could have used the proceeds to fund a trust for herself and for Wayne.

Contact Tobin O’Connor Concino P.C. About Estate Planning for Unmarried Couples

An estate planning lawyer can help you protect your life partner against the vindictiveness of family members who disapproved of you for shacking up.  Contact Tobin O’Connor Concino P.C. for help.



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