Massachusetts doesn’t recognize common law marriage no matter how long a couple has lived together. Since common law marriage isn’t recognized, there are no laws that require that property be automatically passed on to a surviving partner after the death of the first and there’s no guarantee that one partner will be in charge of making medical decisions for another.
If you’re living together in Massachusetts, it’s critical that you have your legal affairs in order in case the unthinkable happens. Attorney Andrew Garcia of The Living Together Law Center identifies three reasons why cohabiting couples should prepare an estate plan in 2016:
Reason #1: When You Die Your Surviving Boyfriend or Girlfriend Doesn’t Automatically Get Your Property
When a person dies without a last will and testament, Massachusetts law controls how property passes on. This is called the “law of intestate succession” or the “laws of intestacy.”
Massachusetts law says that when a person dies without a will their property will pass on to a surviving spouse. If there is no surviving spouse, then it passes to surviving children. If there are no surviving children, then to surviving parents, siblings and so on.
One person that the law does not include is a surviving boyfriend or girlfriend. So, a surviving cohabiting partner is not guaranteed to receive any property from a deceased cohabiting partner.
Imagine living together for 10 years in a house that is titled in the name of only one of the partners. Both partners contributed to maintaining the house and paying the mortgage, insurance and taxes. Suddenly the partner in whose name the deed was in dies and there’s no last will and testament.
Under Massachusetts intestate laws that surviving partner is not entitled to that house. In fact, that surviving partner isn’t entitled to receive any of the real estate or personal property of the deceased partner. Instead, the surviving partner will discover that the siblings, parents or even children of the deceased partner is entitled to all of that property.
By having a properly drafted last will and testament or a trust agreement partners who are living together can protect each other and make sure that property will pass on the way that they want it to pass on after death.
Reason #2: A Cohabiting Partner Does Not Get to Make Health Care Decisions for the Other
Most people who are living together in a committed, loving relationship are probably the ones who best know the other’s medical wishes in the event of an emergency or other critical care moment. Yet the sad truth is that without a legally documented Health Care Proxy the doctors and other medical personnel won’t be required to follow those decisions.
Too many people don’t realize that their cohabiting partner won’t be able to make health care choices for the other without a properly executed health care directive nominating the other to make those decisions. It’s not enough that you live together. It’s critical that you choose someone to make medical decisions for you before you’re ever caught in a position where you cannot. Make 2016 your year to do that.
Reason #3: A Surviving Partner Cannot Make Decisions About the Handling of Funeral Arrangements or the Remains of the Other
Unless there are valid written instructions stating otherwise, Massachusetts law states that only a deceased person’s surviving kin will be able to make decisions about funeral arrangements and the handling of remains. For couples who are living together this means that neither partner will have decision-making authority at a time when they are grieving the most.
Funeral directors in Massachusetts are required by law to follow the instructions of a deceased person’s surviving spouse, adult children, parents, siblings or guardians if there are no legally valid written instructions giving someone else the power to make choices about a funeral or remains. The decisions of a surviving partner who has lived with a deceased partner for years do not have to be followed by the family of a deceased partner.
Resolve to Make Your Wishes Legally Binding in 2016
Let’s face it, the law leaves too many uncertainties for couples who are living together. Resolve to cure clarify your wishes in 2016 and create an estate plan.
If you’re interested in scheduling a consultation about your estate planning needs in 2016, just fill out the following contact form:
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