On our Estate Planning and Probate Section of the Arizona State Bar there have been discussions with younger lawyers looking for ways to state in their clients’ estate plans that two people consider themselves “life partners” and that this is something more than being single. They are asking is there a middle way between Married and Single today.
The law looks for clear rules that society can follow and understand, and that judges can interpret and follow. Thus, under the law you are either married or single. It is a bright line rule. Under the law if you are divorced, you are single. If you are widowed, you are single. If you are legally separated, you are still married but have agreed a marital asset settlement. When drafting estate plan documents, we declare a person’s marital status and we declare their children, if any. We do this because legally married spouses and children have inheritance rights under the law from the decedent.
While our society has evolved and many people choose to not marry but still live together, the law presumes you chose that course of action for a reason; and will therefore, honor that choice. The law presumes you did not wish to give the other person the rights afforded to a spouse under the law. People don’t always understand this when they don’t have legal counsel and can be surprised that a long-term girlfriend/boyfriend is not recognized as any kind of relative and has no rights by law at death, regardless of the number of years. The girlfriend/boyfriend might have a claim in an asset, like a house, that they contributed to the mortgage and/or upkeep of the house. But this must be proven with detailed receipts and documentary evidence if their name is not on the deed. Their claim is usually under contract law.
Domestic Partners are not currently recognized in Arizona nor is a common law spouse. California also does not recognize common law spouses. However, California was the first state to recognize same-sex domestic partners in 1999 and slowly expanded what those rights entailed so that as of today, they are analogous to a civil union spouse. In 2020, California extended Domestic Partnership to heterosexual couples. However, these rights do not arise because of cohabitation or what people said to their friends and family. Similar to a marriage license, there is a form the parties must acquire from the Secretary of State, sign in front of a notary and then file with the Secretary of State. The California Secretary of State then keeps a registry of Domestic Partnerships and when they are terminated.
It may be that the Domestic Partnership registry will become the norm, but it is not today; and it requires more than cohabitation. Today a person is either married or single. It’s a bright line rule. If you wish to afford some of the rights and privileges of marriage onto another person that is not your spouse, then you must take affirmative steps to protect your significant other. Those steps may include naming the significant other in your estate plan, taking out title with them on real property or bank accounts; and in states like California legally applying for domestic partnership. In all cases it requires taking legally enforceable actions. As unfair as it may be, the spouse of one day has a wide variety of protections under the law when their spouse dies; whereas, the life partner of twenty years is not recognized under the law as having any kind of protected relationship.
The answer is yes, it still matters!
Disclaimer – This article is for information purposes only. It is not intended to provide legal advice to anyone. If you require advice, you should reach out to our firm or another lawfirm to discuss your facts and circumstances to obtain legal advice.
Married or Single - Does this really matter anymore?
By C. Margaret Tritch