Imagine that you have been living with your partner for several years (or even decades) when he or she dies suddenly. What rights do you have? Will you inherit their house, have access to their bank accounts, or be able to claim Social Security survivor benefits?
The answer is almost certainly no.
In 2016, 18 million Americans were living with a long-term partner to whom they were not married. (This is an increase of 29% since 2007.) Perhaps surprisingly, the age group with the greatest increase in cohabitation has been in people over 50 years old. As societal norms change, it’s important to know that the laws haven’t caught up.
You may have heard that if you live with a partner for seven years, you become married by common law. While a minority of states do recognize common law marriage (requirements differ by state), Massachusetts and New Hampshire do not. (New Hampshire has a narrow exception for inheritance, but it’s hard to prove; see below.)
For couples who choose not to get legally married, it’s important to have an estate plan. Partners can appoint each other to manage financial and health care matters if one of them is incapacitated, and can make wills designating each other to inherit the home and other assets. This is also important when couples have children from previous relationships; the couple may wish to be clear as to whose children will inherit what.
The Legal Benefits of Marriage
The decision of whether or not to get married isn’t solely a legal one, of course. But marriage, in both Massachusetts and New Hampshire, brings with it certain inheritance rights that you won’t have if you’re not married.
- Social Security Survivor Benefits. Widows and widowers can claim Social Security retirement benefits on their late spouse’s record, which can be financially advantageous if the deceased spouse earned more money than the surviving spouse.
- Pensions - This is rare and will depend on your pension, but some survivor benefits are only available to spouses.
- Spousal Share -Even if your spouse does not leave you anything in their estate plan, state law allows a surviving spouse to petition the court for a share of the estate. (NH RSA 560; MGL Chapter 191 Section 15)
- Gift & Estate Taxes - The federal estate tax and the estate tax include exceptions for spouses: you can gift or leave as much money as you like to your spouse without paying taxes.
The New Hampshire Inheritance Exception
It is possible to prove common-law marriage in New Hampshire for the sole purpose of claiming a spousal share of the deceased partner’s estate. However, the burden of proof here is high- the surviving partner has to show evidence that the community at large thought that he or she was married: anniversary cards, testimony from friends, neighbors, and co-workers stating that they thought that the couple were married, pictures of the couple wearing wedding rings. Proof of a long-term commitment is not enough: it has to be a marriage minus the paperwork. Very few long-term relationships will meet this standard, particularly when, these days, many people make no secret of living together without a legal marriage. And don’t forget that getting a judgment from the court will cost quite a lot of money.
The Social Security Exception
The Social Security Administration will also recognize common-law marriage for the purposes of granting a widow’s pension. This exception also requires proof that the community at large thought that the deceased partner and the surviving partner were married.
Estate Planning for Unmarried Couples
Since the law doesn't protect unmarried couples, it's important to have an estate plan. You can appoint your partner to make your medical decisions and manage your finances if you're incapacitated; you can make a will that leaves your assets to your partner.
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