Why Unmarried Same-Sex Couples Need an Estate Plan

A same-sex couple cuddle with their dog on the sofa at a vacation cabin. — (Image credit: Getty Images)

I've been practicing elder law for decades, and I've sat at too many kitchen tables explaining one hard truth: A marriage license isn't just a piece of paper. It unlocks a long list of legal rights and protections that unmarried couples simply don't get despite how long they've been together.

For same-sex couples who aren't married, the gap between what you think happens and what the law actually says can be huge.

When something goes wrong, such as an illness or death, that gap can swallow everything you've built together.

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What marriage automatically provides

When you're legally married, the law automatically gives your spouse important rights. You don't have to fill out a single form for them to:

Inherit property without going through probate
Own the home outright through survivorship
Step into decision-making roles for finances and health care
Access retirement and survivor benefits
Be recognized as next of kin without question

But if you're not married, none of this will happen automatically. Even if you've been together for 30 years, the law may treat you like you're strangers.

The legal system can work against you

Some of the toughest cases I've ever handled weren't against hospitals or banks; they were against families.

When a partner gets sick or passes away, the people who've disapproved of the relationship all along suddenly have legal power. They can step in, claim authority and, in some cases, push the surviving partner aside entirely.

I've seen longtime partners barred from hospital rooms, cut out of funeral plans, even forced out of homes they helped build. All because the law didn't recognize their relationship.

Ownership rights are fragile without marriage

If you're married and own a house together, the law gives you strong protections. When one spouse dies, the other automatically owns the home. There's no probate and, hopefully, no fights.

But if you're unmarried and the deed doesn't spell things out clearly, the default is what's called "tenants in common." That means each person owns a share. If one partner dies, their family inherits their share.

And yes, they can force a sale. I've seen partners who've spent decades in the same home suddenly facing eviction because their name wasn't on the title.

Inheritance gets even messier without kids

Some same-sex couples don't have children together, which can make inheritance more complicated. When there are no kids, state law will start looking at other family members such as parents, siblings, nieces or nephews.

If they didn't approve or support the relationship, things can get ugly for the surviving partner.

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Even for couples who marry later in life, this creates tension. Once the survivor dies, the assets usually flow to their family, not both families. That can turn already complicated family dynamics into full-blown legal battles.

Medical decisions: Who speaks for you when you can't

One of the most painful scenarios I've seen is when someone lands in the hospital, unconscious or unable to speak, and their partner has no legal right to make decisions.

Hospitals don't turn to partners. They turn to next of kin: parents, siblings, adult children. And if that family never accepted the relationship, they could shut the partner out completely.

Financial decisions in a crisis

The same is true with money. If you don't have a financial power of attorney, your partner has no legal right to access your accounts or pay your bills. Your family can go to court to get control, and your partner can be left on the sidelines.

This happens more often than people think. It's not just theoretical. I see it every year.

Funeral and burial rights

Michigan law gives next of kin the right to make funeral decisions. If your partner isn't legally recognized, their voice may not matter.

A simple funeral representative designation can fix this. But without it, families can, and sometimes do, push partners out.

The answer: Real planning

Here's the good news: You don't need a marriage license to protect your partner. Instead, you need a plan. By making a plan, you can:

Sign a will or create a trust
Put both names on the house the right way and identify how its owned, jointly or in common
Name your partner in your medical and financial powers of attorney
Choose your funeral representative
Set up clear beneficiary designations

These aren't just legal documents. They're love letters that say, "I trust you, and I want you protected."

How family disputes can be prevented

Clear, written estate plans stop a lot of fights before they even start. When your intentions are in black and white, there's less room for families to step in and take control.

I've seen fights that tore families apart. I've also seen the relief on a client's face when everything was planned properly and no one could override their wishes.

A special word to older couples

Many same-sex couples in their 50s, 60s and beyond built their lives together long before marriage equality was law. They've saved, built homes and cared for each other.

But without legal planning, everything they've built can unravel the moment one partner becomes ill or passes away.

A strong call to action: Protect what you've built

If you're in a same-sex relationship, it's imperative to review your deed and titles as soon as possible.

You should also put a will or trust in place, assign powers of attorney for health care and finances.

Choose who makes funeral decisions and talk openly about your wishes.

Estate planning isn't just about paperwork. It's about making sure the person you love isn't left powerless at the worst possible time. You've built a life together. Now make sure the law respects it.

Pat Simasko is an investment advisory representative of and provides advisory services through CoreCap Advisors, LLC. Simasko Law and CoreCap Advisors are separate and unaffiliated entities.

Disclaimer

This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.

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Patrick M. Simasko is an elder law attorney and financial adviser at Simasko Law and Simasko Financial, specializing in elder law and wealth preservation. He’s also an Elder Law Professor at Michigan State University School of Law. His self-effacing character, style and ability have garnered him prominence and recognition throughout the metro Detroit area as well as the entire state.