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Real Life Probate Stories: Protecting the Unmarried “Spouse”

a will or trust is necessary to protect an unmarried couple

Most of us will never need to know the ins and outs of the Criminal Court System, the Civil Court system, and maybe not even the family law system. But almost all of us will encounter Probate Law. Why? Because at some point, someone in your family or close circle of friends will die – and you’ll have to deal with it. You may never have to see the inside of a Probate Courtroom (if you’re lucky), but you will find yourself getting to know the law associated with it. 

As a Trust and Estate attorney who has worked in the field of probate law (trusts/estates/elder law) for over a decade, friends frequently tell me about the encounters they’ve had with probate law. Some of the stories I hear are positive, others serve as warnings. While I often speak generally about my own cases, I do not make a practice of telling my client’s stories (and I should not). Therefore, I thought I’d share with you some of the stories I’ve been told this year by friends and family who are comfortable with anonymous sharing. First, I’ll start with two stories about unmarried “spouses.”

The Unmarried Spouse

Part 1: Judith and Robert

This is a story I’ve heard more than once, to be sure. Two people are in a committed relationship. One has relatively more assets than the other. The couple never legally marries, but for all other intents and purposes act as husband and wife for a large part of their adult lives.

The first tale is from a friend in North Carolina, and the second is from my wife’s former boss in San Francisco. 

A woman we’ll call Judith falls in love with a man we’ll call Robert. Judith and Robert fall into a committed relationship with each other. Robert comes from a family of significant wealth, and his mother does not wish for him to marry because of this. At least this is what Judith understands. Now, Judith is a school teacher with no family money of her own. Despite his wealth, she wants to maintain her sense of power and insists they split everything fifty/fifty. She quickly becomes accustomed to his expensive tastes,  and frequently finds herself splitting the cost of lavish trips and pricey meals. After many years, Robert leaves Judith.

Judith has to endure the pain and devastation of a divorce, but is entitled to nothing – no spousal support, none of the income Robert earned their relationship, no property – nothing. She has to start over.

Now, perhaps this tale is more a story for a divorce attorney – a strong argument in favor of marriage or domestic partnership as opposed to long term dating. But what if Robert had died instead of left her? Judith would still have been left with nothing save the pain and heartbreak of the loss. In this case, Robert could have secured the future of the woman he loved through a will or trust – without marriage.

Had they married however, under California probate law Judith would be entitled to community property assets and a portion of his separate property assets as well.

Without a marriage, domestic partnership, or Estate Plan, a long term partner is entitled to nothing. 

What’s the bottom line here? It’s simple – marriage isn’t necessary, but to protect oneself in the event of death, a Will or Trust must be executed. This is particularly important when two people have vastly different levels of wealth. Now, should a long term couple decide to part ways (ie break up) – a marriage or domestic partnership may be ideal to protect the partner of lesser means. But that’s a question for a family law attorney.

Be sure to read Part 2 of “Real Life Probate Stories – The Unmarried Spouse” where I tell the story of Maritza, a beautiful Venezualan woman whose partner died in a tragic San Francisco motorcycle incident.

For questions about Wills, Trusts, and Estate Planning for unmarried couples, call my SF East Bay Trust and Estate Law Firm at 925-322-1795 for your consultation today! 

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