The consideration of estate matters in New York always involves a number of variables. New York, as well as the country as a whole, is comprised of a diversity of personal relationships controlled by numerous laws that are evolving all of the time. A recent article written by Sarah O’Brien entitled “If you live with your partner and are unmarried, this is what happens when you die,” which appeared at CNBC.com on February 27, 2020, highlights just one of many problematic areas of personal concern.
In New York, as elsewhere, the formalization of a partnership through marriage creates certain spousal rights that have a direct impact on inheritance. The New York Probate Lawyer Blog has published numerous posts talking about these matters. For example, if a person dies intestate without a Last Will, his administration estate is, according to estate laws, (Estates Powers and Trusts Law section 4-1.1), going to be distributed to his next of kin. An unmarried partner is not included in this class. As an estate lawyer, I have seen many situations where upon the death of an unmarried partner, the surviving partner cannot share in the estate despite the longevity of the relationship.
Ms. O’Brien’s article discusses these types of issues. Of course, there are some relatively simple solutions which require some thought and time and effort to complete. First and foremost, each partner should complete a Last Will which names the other as primary beneficiary and executor. It is also important to designate alternate beneficiaries and fiduciaries so that the creator’s intentions and desires can be fully carried out. Living Trusts can also serve the purpose of having a valid document delineating the individuals who are to receive benefits upon death.
Another simple step can be to create joint ownership accounts or provide for designated beneficiaries on retirement funds or life insurance policies. While all these methods can insure that an unmarried partners’ interests are secured after death, the creation of a Will or Trust is not an all-or-nothing proposition. The dispositive language and beneficiary designations can include a portion of the estate for many beneficiaries, as well as the partner.
Additional considerations also need to be given to other aspects of personal benefits. An employer may provide lifetime or post-death health or retirement benefits to a spouse automatically. It may be necessary to investigate whether an unmarried partner can be designated to receive these items. Also, lifetime advance directives should be prepared such as a healthcare proxy or power of attorney. A non-relative may not be allowed to make personal decisions for someone who becomes incapacitated without a Court naming him or her as legal guardian. An additional consideration should be funeral and burial directives. I have seen many situations where an unmarried surviving partner knows the manner in which the deceased partner wished to have his remains treated only to be thwarted by family members.
The bottom line to planning your estate is always to actively get involved with and complete a plan. Individuals who are maintaining relationships and have concerns about long-term events should explore all of the alternatives and actively engage in preparing Wills, healthcare proxies, powers of attorney and other documents to insure that each party’s desires are recorded and reflected in enforceable documents.
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New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.