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Whether it be for financial purposes, a marriage trial period, or prevention of loneliness, more people are living together with people outside of their families or spouses than ever before. Cohabitation before marriage (or in lieu of marriage) has lost much of its social stigma, but that does not mean that the law has granted the same protections of marriage to roommates or couples. As far as your estate is concerned, your parents may have been right: if you are living with your partner, you are basically living with a stranger.

Talking with your fellow cohabitant about money and your plans is essential.

Unmarried and Intestate:

Intestacy law governs an estate in the absence of a will or other planning document. Tennessee law dictates that assets first flow to a surviving spouse. In the absence of a spouse or surviving issue (children), assets then go to the decedent’s (dead person) parents. If no parents are alive, the decedent’s siblings and their issue take next, followed by grandparents and their issue. Romantic partners or unrelated roommates are not present in the line of intestate succession.

To a single, unmarried individual, intestacy may not seem like such a bad thing—no spouse to worry about, parents would probably get whatever assets they have anyway. But for an unmarried individual in a relationship, intestacy likely does not provide their ideal asset distribution.

Cohabitants share no legal bond when it comes to their estates. Whereas intestacy favors marriage and even provides methods for a spouse to take from intestacy in the event a will may not provide as much, dating individuals have no such protection. In the eyes of the law, the person you are dating—unless you are illegally dating your sibling and/or parent—is just another individual unconnected from your life.

Wills for Cohabitants:

Working with an estate planner on a will allows you to provide for those people in your life who may not be covered by the built-in protections of state law. Your will can include provisions for someone you are dating, your roommate, your friends, or even your coworkers. By enshrining your wishes in a will, you ensure protection for your partner.

Wills for romantic cohabitants who have been together for a long time will closely resemble the wills of married couples. Most wills include a “family” or “parties” section within which it would be possible to define your significant other as your “partner” or other appropriate term. But even such definitional formality is not absolutely necessary. The testator (the person writing the will) can state the name of who they are giving assets to without any signifier. Although it is helpful for lawyers, courts, and other family members to know that Joe Smith is your long-term romantic partner, just saying that you are leaving 50 percent of your estate to Joe Smith works.

Who to Leave Your Estate To:

As stated, the parties a testator gives their assets to is a personal decision. If two platonic roommates have been living together for years, their bond may be strong enough to include each other in their wills. Similarly, if a couple has lived together for years, they are likely to craft their wills like a married couple (remember—Tennessee does not have common law marriage).

However, if a testator has been dating a partner for a brief time (less than 6 months or so), an estate planner may question a large asset distribution. Such allotments may trigger later claims of undue influence (trying to pressure the testator to make the will in a certain way that likely benefits the person pressuring). Because there are no built-in legal protections for cohabitants, the risk of abuse by either party is higher. Having frank conversations with your partner about money, death, and your wishes is the best way to decide whether they are truly someone deserving of being in your estate plan.

Who to Talk To:

By working with an  estate planner, a person wanting to leave their estate to their significant other can ensure their wishes will be followed. For more information, schedule a consultation or call Zach at 615-852-5679.

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Post Author: Zachary Brown

Zachary Walker Brown is a Nashville estate planning attorney who also works in the areas of government relations and small business law.

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