Estate Planning for Unmarried Couples: What the Law Won't Do for Your Partner

Legally, you are a stranger to the estate. Each state's intestacy law decides who inherits from someone who dies without a will, and the lists run to spouses, children, parents, siblings and more distant relatives. A partner of 20 years is not on them. Your partner's adult children, or a brother you have met twice, inherit the house you live in, and the executor they choose decides when you leave.

There are two narrow exceptions, both matters of state law. Some states let couples register a domestic partnership or civil union that carries spousal inheritance rights. And some states recognize common-law marriage, which is a real marriage formed without a ceremony, not a status earned by living together for a number of years; other states do not allow new common-law marriages but recognize ones validly formed elsewhere (SSA POMS GN 00305.060). Do not build a plan on either unless a lawyer in your state confirms it applies to you.

Beyond inheritance, a surviving partner usually has no automatic standing for the things spouses take for granted: a share of the estate regardless of the will, the right to make medical decisions when you cannot, access to your accounts, or in many states the right to decide on a funeral. Each can be granted by a document. None is granted by the relationship.

Almost everything that passes automatically. The table is the checklist: every row where the spouse column says “automatic” is a document you need.

At minimum a will; for most couples with a house and adult children, a revocable living trust with a short “pour-over” will. Both let you leave property to a partner. The trust has three advantages that matter more for unmarried couples than for spouses.

• •It avoids probate. Assets titled to the trust pass under its terms without a court process, which also means relatives who would have inherited under intestacy do not receive formal notice and a ready forum to object. Probate files are public; trusts generally are not.
• •It can hold property for the partner rather than give it outright. A trust can let your partner live in the house or receive income for life and then pass what remains to your children, the same structure married people in second marriages use (see our guide to blended family estate planning).
• •It works during incapacity. A successor trustee you choose, which can be your partner, manages trust assets if you cannot, without a court guardianship.

Challenges are the real risk. Relatives who would inherit without a will have standing to contest it, most often on grounds of capacity or undue influence, and a late-life will in favor of a partner is exactly the pattern those claims target. Sign documents while your health is good, with your own lawyer (not your partner's), and leave a letter explaining your reasons. A plan that also provides something for your children is harder to attack than one that leaves them nothing.

So that each asset goes where you intend without depending on the will. Most wealth passes outside a will, by title or beneficiary designation, and these designations are where unmarried couples have the most control.

• •Beneficiary designations on IRAs, 401(k)s, annuities and life insurance can name a partner, children or both in percentages. Name contingents. Replace any late or former spouse still on a form.
• •Payable-on-death and transfer-on-death registrations on bank and brokerage accounts pass the account directly to whoever is named. Some states also allow a transfer-on-death deed for real estate; ask your attorney whether yours does.
• •Joint tenancy with right of survivorship sends the whole asset to the surviving owner. It is simple and it works, but it gives your partner a present ownership share you cannot take back, exposes the asset to your partner's creditors, and has gift and estate tax consequences for unmarried owners (next section).
• •Tenancy in common gives each owner a separate share that passes under their own will or trust. It suits a house bought together with unequal contributions, each share going to that owner's children or partner as they choose.

Spouses can give or leave each other any amount free of gift and estate tax (IRC 2523; IRC 2056). Unmarried partners are taxed like any two unrelated people. In 2026 you can give your partner up to $19,000 a year without any filing. Above that you must file a gift tax return, Form 709, and the excess reduces your $15,000,000 lifetime exemption; tax at up to 40% is due only once lifetime taxable gifts and your estate exceed the exemption (IRS). The unused exemption of an unmarried person cannot be passed to a surviving partner the way portability allows between spouses.

For couples who share a life, several ordinary moves are gifts under the Form 709 instructions (IRS):

• •Adding your partner to a deed as joint tenants with right of survivorship is a gift of half the property's value, where either owner could sever the joint tenancy.
• •A joint bank account is not a gift when you open it; it becomes one when your partner withdraws money for their own benefit.
• •Large purchases for your partner, a car or paying off their mortgage, are gifts to the extent they exceed the annual exclusion.

Two payments are excluded without limit: medical care paid directly to the provider, including health insurance premiums, and tuition paid directly to a school (IRS). Paying your partner's hospital bill is not a gift; giving them the money to pay it is.

Joint property at death. When unmarried joint owners hold property with right of survivorship, the whole value is included in the estate of the first to die, except the part the survivor can show they paid for with their own money (IRC 2040(a)). Spouses include only half automatically. Keep records of who contributed what to a jointly owned house or account. The rule has an upside: whatever is included in the decedent's estate gets a basis stepped up to its value at death (IRC 1014), which can erase capital gains on a long-held house.

State inheritance taxes can matter more than federal tax. A handful of states tax what each heir receives at rates that depend on the heir's relationship to the deceased, and an unmarried partner is usually in the least favored class. In Pennsylvania, for example, a spouse pays 0% and heirs other than relatives pay 15% (Pennsylvania Department of Revenue). Our estate planning basics guide lists the states with estate and inheritance taxes, and our gifting guide covers the annual exclusion and Form 709 in detail.

They go to whoever is named on the beneficiary form, and a partner who inherits is a non-spouse beneficiary. That means your partner cannot treat the IRA as their own or roll it into their own IRA; the account stays an inherited IRA, and it can be moved only by a trustee-to-trustee transfer to another inherited IRA in your name for their benefit (IRS Publication 590-B).

Most non-spouse beneficiaries must empty the account by the end of the tenth year after the owner's death, with annual withdrawals in between if the owner had reached their required beginning date. But the rule has an exception that fits many older couples: a beneficiary who is not more than ten years younger than the owner is an eligible designated beneficiary and can take withdrawals over their own life expectancy instead (Publication 590-B). A partner who is older than you, or at most ten years younger, qualifies. That can mean much smaller required withdrawals and much less tax than the 10-year rule. Our inherited IRA guide shows the 10-year arithmetic.

For a 401(k) or pension, an unmarried participant can name anyone, and a partner can move an inherited 401(k) to an inherited IRA by direct rollover. Pension survivor options are set by each plan: some allow a non-spouse joint annuitant, some limit the survivor percentage for a much younger non-spouse, and some pay a survivor annuity only to a spouse. Ask the plan before you retire, because the choice is usually permanent once payments start.

If the IRA is your largest asset and your partner needs income from it, a Roth conversion during your lifetime can make it more valuable to a partner who will inherit it under the 10-year rule, since Roth withdrawals are tax-free.

An unmarried partner receives nothing on your record: no spousal benefit while you are alive and no survivor benefit after you die. Social Security pays those benefits to spouses and certain former spouses, generally after a year of marriage for spousal benefits and nine months for survivor benefits (SSA; SSA Publication 05-10084), and it decides whether a couple is married under state law, which includes valid common-law marriages (SSA POMS).

This is often the largest single thing an older unmarried couple gives up. When one partner's benefit is much larger than the other's, a married survivor would switch to the larger check; an unmarried survivor keeps only their own. Life insurance or a larger share of savings for the partner is the usual substitute. Our survivor benefits guide shows what a widow or widower receives, which is the amount an unmarried partner forgoes.

Benefits from a previous marriage work the other way. A widow or widower who remarries at 60 or older keeps eligibility for survivor benefits on the late spouse's record (SSA), but someone collecting benefits as a divorced spouse must generally be unmarried to keep them (SSA). Check which kind you receive before assuming marriage would cost you.

Whoever you name in writing, and if you name no one, state law decides, usually favoring spouses and relatives. Three documents cover it:

• •Durable financial power of attorney. Lets your partner pay bills, manage accounts and deal with the IRS if you cannot. Without one, a partner may need a court guardianship. Banks and brokerages often have their own forms; sign those too.
• •Health care proxy (health care power of attorney) and living will. Names your partner to make medical decisions and records your wishes on life support. State forms differ; use your state's.
• •HIPAA authorization. Federal privacy rules already let providers share information with a close personal friend or other person you identify who is involved in your care, and, if you are incapacitated, when they judge it in your best interest (45 CFR 164.510(b)). That is permission, not an obligation. A signed authorization naming your partner removes the doubt.

Give copies to your doctors and keep them where your partner can find them. If you have adult children, tell them who you have named and why; the hospital corridor is the worst place for them to find out.

If you own property together or one of you pays most of the costs, yes. A cohabitation agreement is a contract between unmarried partners about money and property: who owns what, how shared expenses are split, what happens to the house and its equity if you separate, and whether either owes the other anything. Married couples have divorce law to divide property; unmarried couples have only titles, receipts and, in some states, contract or equitable claims that are expensive to litigate.

It is mainly for separation, not death, though it can promise estate provisions, such as a right to stay in the house or a minimum bequest, which your will and trust then carry out. Enforceability is state law; a written agreement with financial disclosure, signed with separate lawyers, is the standard to aim for.

It goes to whoever the title and your documents say, and if the house is in your name alone with no plan, that is your relatives, not your partner. The house is usually the most urgent problem for an unmarried couple where one partner moved into the other's home. The options mirror those for second marriages:

• •Right to live there under your trust for life or a set number of years, then to your children. Say who pays taxes, insurance and repairs.
• •Outright to your partner by will, trust or a transfer-on-death deed where your state allows one.
• •Joint tenancy during life. It works at death, but it is a gift of half the value now and cannot be undone without your partner's agreement.
• •Tenancy in common if you both contributed, each leaving their share as they choose.

On a sale, each unmarried owner who meets the ownership and use tests figures gain on their own share and can exclude up to $250,000 of it; a married couple filing jointly can exclude up to $500,000, and a widow or widower keeps that limit for two years after the death (Treas. Reg. 1.121-2(a)(2); IRS Publication 523).

Sometimes a great deal, and it is a fair question to ask with numbers rather than sentiment. Marriage brings the unlimited marital deduction, portability of the estate tax exemption, spouse treatment for an inherited IRA, and Social Security spouse and survivor benefits. It also brings things some couples in their sixties and seventies avoid deliberately: the new spouse's elective share and 401(k) rights, which cut against leaving assets to children from an earlier marriage; the end of divorced-spouse Social Security benefits and of some alimony and pension survivor payments on remarriage (check your own documents); and a combined income on a joint tax return.

Two points get missed. First, a widowed partner who marries at 60 or later does not lose survivor benefits from the late spouse, and after 9 months of marriage can collect the larger of the two survivor benefits. Second, a prenuptial agreement can waive most inheritance rights where state law allows, though not 401(k) rights, which the spouse must waive after the wedding. The worked example below prices one couple's choice. If you do marry, the planning issues become those in our blended family estate planning guide.

Richard, 71 (born 1955), and Susan, 67 (born 1959), have lived together for 12 years; both were widowed. Susan moved into Richard's house, which is in his name alone ($1,100,000). Richard also has an IRA ($1,500,000) whose beneficiary form still names his late wife, and a brokerage account ($700,000). He has two daughters and receives $4,000 a month from Social Security. Susan has her own IRA ($450,000) and savings ($150,000) and receives $2,600 a month as a survivor on her late husband's record.

With no plan.Richard dies without a will. Under intestacy his daughters inherit the house and the brokerage account. The IRA's only named beneficiary has died, so it follows the custodian's default, typically his estate, and reaches his daughters too. Susan receives nothing, has no right to stay in the house, and gets no Social Security from Richard's record.

With a plan. Richard signs a revocable trust and retitles the house and brokerage account to it. The trust lets Susan live in the house for life, paying taxes, insurance and routine upkeep, and then passes it to his daughters; the brokerage account goes to them at his death. He changes the IRA beneficiary form: $500,000 to Susan and $1,000,000 to his daughters.

• •Susan's inherited IRA. She is four years younger than Richard, within ten years, so she is an eligible designated beneficiary. Her first required withdrawal, in 2027 when she turns 68, is $500,000 divided by her single life expectancy of 20.4 (IRS Publication 590-B, Table I), about $24,510, before growth, and she can take more whenever she likes.
• •The daughters' inherited IRAs. Richard died before his required beginning date, so they have no required annual withdrawals, but they must empty their $1,000,000 by December 31, 2036.
• •Estate tax. Richard's $3,300,000 estate is below the $15,000,000 exemption, so no federal estate tax is due, even with no marital deduction. Had his estate been $20,000,000, the $5,000,000 above the exemption would have faced tax of about $2,000,000 at 40%, whether left to Susan or to his daughters; a spouse's share would have been deductible.
• •Gifts along the way. Richard gave Susan $50,000 for a car in 2026: $31,000 above the $19,000 exclusion, so he files Form 709 by April 15, 2027, and his remaining exemption falls by that much. No tax is due. When Susan needed surgery, he paid the hospital directly; that is excluded and needs no return. He considered adding Susan to the deed as a joint tenant instead of using the trust, a gift of $550,000, $531,000 of it taxable. Again no tax, but it could not be undone, and the trust gives Susan the same security.
• •Medical and financial documents. Each names the other as health care agent and signs a HIPAA authorization. Richard names Susan and one daughter as co-agents under his financial power of attorney.

If they married. Both are over 60, so Susan would keep eligibility on her late husband's record. After 9 months of marriage, if Richard died she could take a survivor benefit on his record instead: she is past her survivor full retirement age of 66 and 6 months, so it would be the full $4,000, $1,400 a month more than she receives now, or $16,800 a year. Against that, Susan would acquire elective-share rights in Richard's estate unless a prenup waived them. They decide to stay unmarried and have Richard leave Susan a larger IRA share instead; another couple could reasonably decide the other way.

Start with the documents that protect you both while alive, then the ones that take effect at death.

• •Believing long cohabitation equals marriage. Common-law marriage is not created by years together, and only about ten jurisdictions still allow new ones to be formed (SSA POMS GN 00305.075).
• •Leaving a late or former spouse on a beneficiary form. The account may go to that person's estate or to yours, and from there to relatives.
• •Relying on a will alone for the house. Probate gives relatives notice and time to contest; a trust or deed arrangement is harder to disrupt.
• •Adding a partner to a deed without thinking about gift tax. It is a gift of half the value, and it cannot be undone alone.
• •Not keeping records of who paid for joint property. Without proof, the whole value is taxed in the first estate.
• •Assuming a partner can roll over an inherited IRA. Only a spouse can. A partner must keep it as an inherited IRA and move it only by trustee-to-trustee transfer.
• •Missing the ten-year-age exception. A partner not more than ten years younger can stretch IRA withdrawals over life; plan the split with that in mind.
• •No health care proxy. A hospital may defer to a relative who has not been involved in years.
• •Counting on Social Security survivor benefits. An unmarried partner receives none.
• •Signing late, with the partner's lawyer in the room. The classic set-up for an undue-influence challenge.