Written Estate Planning Documents Can Provide Important Protections For Unmarried Partners
Sharing a home, raising children, and combining finances may make an unmarried couple a family in every practical sense. New York law, however, does not automatically provide long-term partners with the same inheritance, property, and decision-making rights afforded to spouses.
New York has not permitted new common-law marriages formed within the state since 1933. A relationship generally does not become a marriage based solely on its duration or because the couple has presented themselves as spouses. New York may recognize a common-law marriage that was validly created in another state, but most unmarried couples may benefit from a carefully coordinated New York estate plan designed to reflect their intentions.
At Williams Law Group, LLC, Attorney Renata F. Casella assists unmarried couples with plans addressing inheritance, incapacity, property ownership, taxes, and estate administration.
An Unmarried Partner Does Not Inherit Through Intestacy
If a person dies without a valid will, New York's intestacy statute determines how probate property is distributed. Depending on the family structure, beneficiaries may include a spouse, children, parents, siblings, or more distant relatives.
An unmarried partner is not included in that statutory inheritance hierarchy. The length or seriousness of the relationship generally does not create an automatic right to receive property titled solely in the deceased partner's name.
A properly executed New York last will and testament may name the partner as a beneficiary and designate an executor to administer the estate. Without a will, the Surrogate's Court may appoint a relative as administrator, and the surviving partner may have limited involvement in the resulting estate administration.
Elective-Share Rights Generally Apply Only To Spouses
New York provides a surviving spouse with the right to claim an elective share even when the deceased spouse's will leaves that spouse little or nothing. Under EPTL § 5-1.1-A, the elective share generally equals the greater of $50,000 or one-third of the net estate.
An unmarried partner does not receive an equivalent statutory right. If the deceased partner's will is outdated, invalid, or successfully challenged, the surviving partner generally cannot claim a spousal share based solely on the relationship or contributions to the household.
Incapacity Documents May Authorize A Partner To Act
Estate planning may also provide important protections while both partners are living.
A New York durable power of attorney may authorize a partner to manage bank accounts, pay expenses, address investments, handle real estate, and take other financial actions during a period of incapacity. Without appropriate authority, a partner may need to seek court involvement before managing property held solely in the incapacitated person's name.
A health care proxy allows a competent adult to appoint an agent to make medical decisions if the adult later loses decision-making capacity. New York law authorizes this appointment under Public Health Law § 2981.
A person who qualifies as a domestic partner may have priority under New York's default hospital-surrogate provisions when no health care proxy exists. Relying on those default rules, however, may create uncertainty concerning whether the relationship satisfies the statutory definition. A signed health care proxy provides clearer evidence of the patient's choice and generally takes priority over potential default surrogates.
Trusts And Beneficiary Designations May Transfer Assets Directly
A will generally governs probate property, but many significant assets pass through other arrangements.
Retirement accounts, life insurance policies, payable-on-death accounts, and similar assets usually pass to the beneficiary identified on the account. Naming an unmarried partner may allow those assets to transfer outside the probate estate, although each designation should be reviewed as part of the broader estate plan.
A properly funded New York trust may also provide for a partner, assist with asset management during incapacity, and transfer trust property outside probate. Trust provisions may address whether the surviving partner receives income, may continue living in a shared residence, or eventually receives the remaining property outright.
Funding remains an important part of trust planning. Property that remains solely in one partner's name and is not transferred to the trust may still become part of the probate estate.
Property Titles Should Reflect The Couple's Intentions
New York generally reserves tenancy by the entirety for legally married spouses. Unmarried partners may own real estate as tenants in common or, when expressly stated in the deed, as joint tenants with right of survivorship.
These ownership forms may produce substantially different results. A joint tenancy generally allows the surviving owner to receive the deceased owner's interest automatically. A tenancy in common allows each owner's share to pass through that owner's estate.
New York law generally presumes a tenancy in common when property is transferred to two people unless the deed clearly creates a joint tenancy. Reviewing the deed may help confirm whether the ownership arrangement reflects the couple's estate planning goals.
A Cohabitation Agreement May Clarify Financial Expectations
A cohabitation agreement may address property ownership, household expenses, financial contributions, and the treatment of jointly acquired assets if the relationship ends or one partner dies.
New York courts generally recognize express agreements between unmarried partners when the agreements satisfy applicable contract requirements. A cohabitation agreement, however, does not take the place of a will, trust, beneficiary designation, health care proxy, or power of attorney.
Coordinating these documents may reduce the risk of inconsistent provisions and later disputes between a surviving partner and the deceased partner's relatives.
Estate Taxes May Affect Unmarried Partners Differently
New York's basic estate-tax exclusion for individuals dying in 2026 is $7.35 million. Estates approaching that amount may warrant careful review because New York's estate-tax cliff can reduce and eventually eliminate the available exclusion when the taxable estate exceeds the threshold by more than 5%.
Property passing to a surviving spouse may qualify for the marital deduction. Property passing to an unmarried partner generally does not receive the same treatment. Couples with substantial real estate, retirement assets, investments, business interests, or life insurance may wish to consider New York estate-tax planning as part of a broader strategy.
A Coordinated Plan Can Address Both Partners' Priorities
Estate planning for unmarried couples often involves more than a single document. Wills, trusts, powers of attorney, health care proxies, beneficiary designations, and property titles may need to work together to produce the intended result.
Our New York estate planning attorneys assist couples with decisions concerning inheritance, asset management, medical authority, and the selection of executors and trustees. Careful fiduciary selection may also help reduce uncertainty or conflict following incapacity or death.
If you and your partner are not married, contact Williams Law Group, LLC to discuss estate planning options that may help reflect and protect your intentions under New York law.
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