I speak with many Tennessee families every day, and a recent conversation I had was regarding unmarried couples and what estate planning concerns that they would have. Well, if you are an unmarried couple, then your estate planning concerns are much different than the average family.
The most obvious concern is that if you are an unmarried couple and you pass away without any estate planning (no will, no nothing), then your property will pass according to the intestate succession laws. In Tennessee if you pass away with a spouse and children, then all of your property is distributed to your spouse and children. However, your spouse can receive no less than 1/3 of your estate.
What if you are in a long-term relationship and never get married? Well, it doesn’t matter if you live together for 1 year or 50 years, the law in Tennessee does not consider you to be married. Therefore, if you were to pass away, your partner would not be entitled to inherit from your estate.
If you are an unmarried couple, you need to specifically provide for that person in your last will and testament or trust. Leaving your entire estate to your partner in your last will and testament could accomplish these goals. However, if you have children from a prior marriage that are not receiving your inheritance, this could create additional problems.
Anytime someone is expecting to inherit from your estate and discover that they are receiving nothing, it can turn into a very emotional situation. The issue with using a will to distribute your estate to your partner and leaving nothing to your children from a prior marriage, is that your will and your entire estate will have to go through the probate court system. As stated many times before, this is a public court proceeding resulting in your entire life being subject to public record. In addition, it may increase the possibility that your estate will be contested by surviving family members.
For these reasons, many of our clients in these situations prefer to set up trusts. When you set up a trust, and the trust has been properly funded with all of your assets, the probate process is completely avoided. In addition, the estate settlement process is private as opposed to being a public court proceeding. However, this does not necessarily prevent an heir from contesting your will and your trust. If you are unmarried couple and you are leaving everything to your partner and writing out your children from a prior marriage, then the best practice is to discuss your wishes with your children so that they are not surprised when you pass away. If this continues to become an issue even after this discussion, then an in terrorem (no contest) clause may be an appropriate strategy for your estate plan.
If you are an unmarried couple, it is imperative that you have an estate planning discussion so that your partner is provided for in the event of your death. If you have questions on how to plan your estate so that this risk is eliminated for your family, then please contact our office for a complimentary visit so that we can discuss your estate planning needs and concerns in further detail.
We look forward to hearing from you!