5 Legal Protections for Unmarried Couples

“Marriage has many pains,” said Samuel Johnson, “but celibacy has no pleasures.” The eccentric English author may have been on to something. Writing in the 18th century, however, he knew little about today’s most popular compromise—simply living together.

Marriage rates are at an all-time low in the United States, but in the LGBT community we are seeing a reverse trend. Couples in 37 states and the District are now flocking to the altar, the chuppah, and the courthouse to take advantage of new laws allowing same-sex marriage.

The trend will likely continue. Although the outcome is still uncertain, the Supreme Court appears poised to legalize same-sex marriage nationwide later this year. If this happens, the benefits of marriage will be available to more Americans than ever before.

Still, many gay and lesbian couples plan to remain happily partnered but legally unmarried. Some couples consider their relationships too new to be sealed with a lifelong commitment. Others are of an earlier generation, or have such disapproving families, that they think marriage simply isn’t for them.

“Marriage has many pains, but celibacy has no pleasures.”  —Samuel Johnson

Whatever their reasons for remaining unwed, these couples should take advantage of every protection the law provides. A stack of legal documents won’t replicate all of the benefits of marriage, but it can make a huge difference in a crisis. Here are five steps to consider:

1. Prepare an Affidavit of Domestic Partnership. One of the greatest disadvantages of being an unmarried couple is Maryland’s 10 percent inheritance tax. This levy applies to any bequest left to an unmarried partner and can result in a steep tax bill.

An Affidavit of Domestic Partnership will exempt your house from the inheritance tax if the property is titled as joint tenants. You can even add your partner to the title of your house—or remove an ex-partner—without paying recordation and transfer taxes.

The affidavit provides medical benefits as well. You can visit your partner in the hospital, make medical decisions for each other, share a room in a nursing home, and make funeral arrangements when a partner dies.

2. Have an attorney prepare Wills for both of you. Having a current Will ensures that your partner can inherit your assets and administer your estate. Without a Will that says otherwise, your partner would be considered a legal stranger with no right to inherit from you or act as your personal representative (“executor”).

3. Update your beneficiaries. Upon your death, assets like life insurance and retirement accounts will transfer to the beneficiary named on the policy or account—regardless of what your Will might say. If it has been a while since you made these designations, check to make sure your partner is your primary beneficiary.

4. Prepare Durable Powers of Attorney. If either one of you is ever unable to manage your finances, the other partner will have no legal authority to manage bank accounts, sell your house if necessary, or even access a safe-deposit box. A Power of Attorney gives you this authority.

5. Prepare Advance Directives. This document allows you to appoint your partner to make medical decisions for you if you become unable to speak for yourself. Unlike an Affidavit of Domestic Partnership, however, it is likely to be recognized outside of Maryland. It also enables you to designate a backup health-care agent in case your partner isn’t available, and you can include your wishes for certain end-of-life situations.

Unmarried couples who have wedding bells in their future should still protect themselves by having these documents prepared. Then, after the marriage takes place, your attorney can simply update them to reflect your new marital status.

Whether you are enjoying the benefits of marriage or simply the pleasures of lifelong companionship, there are laws that will protect your relationship. Talk to an estates and trusts attorney to ensure that you are making the most of them.