Late in life romance is special. Older couples, often financially secure, can travel, enjoy one another’s company, and get to know families and friends without historical baggage. Staying single also has practical appeal. It seems simple for those who have endured divorce or aim to maintain separate finances. But an arrangement that seems simple can become complicated. Especially when a couple moves in together.
Late in Life Romance Considerations
Any couple should consider what might happen if one of them became incapacitated or dies. But the issues are particularly acute for late-in-life relationships. What happens if one partner can no longer manage health care or finances? How about if one partner needs a high level of care or must move out to receive it? And then, is there clarity about what will happen when a partner dies? Without planning, the results can seem harsh. Estate planning laws are geared toward married couples. As a result, a cohabitating partner can find themselves with little or no power to make decisions.
In Arizona, there is no “common law” marriage. No matter how long a couple has been together acting like spouses, Arizona will not recognize the union as “marriage.”
What Happens in Arizona
In Arizona, if a married person faces a medical crisis and is unable to participate in care decisions, a health-care surrogate law allows the spouse to make them. If an unmarried couple is in this same situation, the law puts blood relatives (adult children, siblings) first. The able partner will have a say only if family allows it.
Similar issues can occur with finances. There is no financial proxy law. If there’s no plan in place, a conservatorship may be required. Romantic partners are nowhere on the list of those with priority.
Even touchier problems can occur at death. Without legal documents, the surviving partner has no legal power to decide burial or cremation arrangements. If there’s no will or trust, state laws of intestacy determine where assets go, and, in Arizona, that’s bloodlines—children, grandchildren, siblings, nieces and nephews. Unmarried partners are not on the list.
These problems are particularly difficult if the incapacitated partner is wealthier and supported the couples’ lifestyle. Or if promises were made but no legal steps were taken. Living arrangements are often the biggest challenge, particularly if only one partner owns the home. Unmarried partners do not automatically gain any standing by living on the property. Even for many, many years. If the home is titled in one partner’s name, the cohabitating partner has no control.
Part of the solution? Execute estate-planning documents before a crisis. Document should specifically deal with the partnership. Financial powers and medical powers of attorney and trusts can spell out whether the cohabitating partner gets to make or participate in decisions and whether to use funds for his or her support.
At death a will or trust can spell out whether the cohabitating partner receives property. In addition (or in the alternative), couples can name one another to receive property directly. Beneficiary, transfer on death (“TOD”), or pay on death (“POD”) designations can transfer life insurance, retirement accounts, and bank and brokerage accounts. Some couples like to keep a jointly owned account for funds they consider shared. Those funds would pass to the survivor.
As for the residence, there are many options. The estate plan can give the cohabitating partner the residence, give them the right to live there for life, or provide a reasonable time to vacate.
Sometimes there is a pre-relationship estate plan in place. Or couples don’t want to replace their chosen fiduciaries—often their children—with their live-in romantic partner. These couples need to think through what might happen in the future. If either of them loses capacity, the other partner may lose control. A child fiduciary is usually obligated to use funds only for their parent’s benefit. If that’s not what the cohabitating couple wants, plans need to be updated.
Couples also may want to consider a cohabitation agreement. This is a contract that spells out the rights and obligations in as much detail as the couple wishes. It provides additional clarity regarding the parties’ intentions. It can detail living arrangements and financial obligations at each stage of the relationship. Who pays for what while both are healthy? What happens when a partner needs care out of the home? What happens on the death of a partner? It also can discuss what happens if one partner provides care for an ailing partner (compensation?). Or who gets what in a breakup.
Each estate plan should be update to be consistent with the cohabitation agreement. If they are inconsistent, expensive problems can ensue. If the deceased partner’s executor refuses to abide by the contract, the surviving partner could have to sue the estate to enforce it.
Because each partner may have different desires, it can be useful for each partner to have a separate attorney. Two attorneys helps ensure both parties’ desires are included.
Late in Life Romance Action
People who are lucky enough to fine late in life romance, also may want to consider extra steps:
- Grant HIPAA Release. HIPAA is a federal law that prevents medical providers from sharing a patient’s medical information without permission.
- Make Arrangements. Pre-plan and prepay for final burial and funeral arrangements, or at least make cremation or burial wishes known with proper legal documentation.
- Get married. There are advantages. community property tax benefits, federal estate tax unlimited marital deduction, and tax-friendly options for retirement plans; top billing as legal heir if assets pass by intestacy; and Social Security benefits (though preserving benefits from a former spouse can be a compelling reason NOT to get married).
No matter what, clarity is important. Late in life romances can be a whirlwind of joy and happiness. Each party needs to acknowledge their wishes and express them. Then, no matter what happens, loved ones will have a clear path forward.