Legal Protections for Unmarried Couples

Many people have questions about the legal needs of unmarried couples, regardless of their gender.  There are many steps unmarried couples can take to achieve legal protections similar to or equal to those of married couples.  However, there are some legal benefits to being married that cannot be duplicated.  How close can unmarried couples come to having the same legal protections as married couples?

            Real Property Ownership:  Many couples want to own real property together with a right of survivorship, so that when one passes away, the other one owns the property outright automatically.  For married couples, having both spouses’ names on the deed does this.  Unmarried couples can add “joint with right of survivorship” to their deed.  However, married couples also have the advantage that a creditor can take the property only if both spouses owe the creditor money.  If only the husband or only the wife owes the creditor money, the creditor cannot force the sale of the land. 

            Health Care Decisions:  A spouse does not have an automatic right to make medical decisions for the other.  Spouses and unmarried partners need Health Care Powers of Attorney appointing the other person to make those decisions. 

            Hospital Visitation:  Believe it or not, hospital policy governs this, not a law.  Hospitals commonly have a policy that only “immediately family” (usually meaning spouses, children, parents) can visit in ICU.  Unmarried partners can sign hospital visitation forms instructing that the other partner be allowed to visit.  Most hospitals will respect these forms, but they are not required to.

            Financial Authority:  A spouse does not automatically have the right to take financial actions on behalf of the other.  Spouses and unmarried partners need durable financial Powers of Attorney to have that authority.

            Inheritance:  A spouse has a statutory right to inherit some part of the other spouse’s estate when there is no will.  However, it is not a complete right.  When one spouse dies, if he is survived by children or by a parent, they will share in the estate along with the spouse.  For that reason, it is important that both married and unmarried couples have wills if they want their entire estate to go to their partner.  It is even more important for unmarried couples because without a will, they will not share in each other’s estate at all.

            Statutory Benefits:  Many state and federal laws give benefits only to spouses or to surviving spouses.  These statutes do not allow those benefits to go to unmarried partners or to anyone other than a spouse.  For example, surviving spouses of military servicemembers and veterans are entitled to certain benefits.  At the state level, surviving spouses of disabled veterans can keep the county property tax exemption used by the veteran when he/she was alive.  Under a federal law called ERISA, a spouse must consent before an employee withdraws money from his/her company retirement account.  Social Security law allows a spouse to have retirement benefits calculated based on his/her own earnings history or on his/her spouse’s earnings history if it is higher.  Benefits available by law to spouses or surviving spouses usually cannot be duplicated or transferred to unmarried partners.

            Property Division After Separation:  Please see the separate article on this website on this issue, as it requires a more lengthy discussion.  In short, North Carolina courts apply equitable principles similar to both business divisions and trust cases to divide property of unmarried couples.

            This column cannot cover all of the legal issues facing unmarried couples.  It is intended to highlight some common ones.

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