Unmarried In South Carolina: How To Avoid Losing It All After A Death

Unmarried In South Carolina: How To Avoid Losing It All After A DeathFor most South Carolinians, marriage remains the preferred way of showing commitment and building a life with the person they love. Yet it is also increasingly common for partners to find themselves living together longer before marriage, delaying marriage, unable to get married, or simply putting it off indefinitely.

Unfortunately, when one partner passes away unexpectedly without the bonds of marriage, this can lead to disaster. Their assets and property can be passed on to some other relative, former spouse, or children, leaving their current partner with virtually nothing. This article is designed to help partners understand the risks of their situation, and what estate planning measures can help. It explains:

  • The risks unmarried couples are running in terms of inheritance.
  • The estate planning measures which can help ensure assets and property are passed on to an unmarried partner.
  • Frequently asked questions about unmarried inheritance and various estate planning tools.
What Rights Do Unmarried Partners Have To Their Loved One’s Assets Or Estate After Death In South Carolina?

Without any estate planning measures in place, an unmarried partner has, unfortunately, no rights whatsoever to their partner’s belongings, assets, or property. According to South Carolina’s intestate inheritance laws, when they die without a will or other estate planning tools in place to prevent it, their assets would go to a married spouse. If there is no married spouse, the assets would then go to any children, then to parents and finally to siblings.

With the right estate planning measures and documents, it is possible to prevent this, allowing even an unmarried partner to fully inherit. For this to occur, you must ensure all of your affairs are in order with the help of an estate planning attorney.

Before diving into these solutions, however, let us consider some of the false paths that many South Carolina residents falsely assume will protect an unmarried loved one in the event of their demise.

How Do Parental Rights Impact An Unmarried Partner’s Ability To Inherit Or Receive Assets?

One of the most common misconceptions is assuming that having a child with someone offers legal protection should they pass away. Unfortunately, the parental rights of an unmarried partner do not give you any rights to inherit any assets.

These rights apply to your ability to have custody over the child, of course, but not to any property after the other parent’s death. If the child has been formally acknowledged, the parent may stand to inherit something on the child’s behalf, but they will not receive anything directly.

What Role Does A Durable Power Of Attorney Play In Protecting Unmarried Partners In Medical And Financial Decisions?

Another tool some partners assume gives them some influence over inheritance is a durable power of attorney. You may think that trusting someone with the ability to make significant financial decisions would extend to healthcare, end-of-life, and financial decisions, including over inheritance.

Unfortunately, durable power of attorney plays no part in protecting anyone’s assets. Once the other person passes away, those decisions are no longer in your hands, even with the power of attorney. The power of attorney dies with the person. Their estate will go to probate court and inheritance rules will apply.

Worse still, durable power of attorney has nothing to do with medical decisions, as its purpose is solely to allow the person named as an agent to carry out financial matters for the other person when they cannot do so themselves.

Can Unmarried Partners Use Joint Tenancy As A Way To Establish Property Rights And Inheritance In South Carolina?

Living together is often used as evidence of a long-term committed relationship, and some couples may assume their joint tenancy agreement might give them some rights over the property. Unfortunately, joint tenancy is woefully insufficient and provides no rights whatsoever.

When the first partner dies with only a simple joint tenancy deed, his or her assets would go to his or her relatives (parents, brothers, sisters, etc.) according to intestate inheritance laws. The only exception to this is if they buy property as joint tenants with the right of survivorship. Then, when the first partner dies, the property immediately goes to the other living partner. This can be sufficient for the property, but will not help with any other assets or belongings.

What Are The Potential Risks Of Relying Solely On Joint Ownership Without Additional Estate Planning Measures For Unmarried Partners?

Counting exclusively on joint ownership to protect you in case of an unexpected death is very risky. If you only own property as joint owners or joint tenants and one partner dies, their share of the property will not go to the other, but will go instead as an intestate succession to their relatives.

Is There Any Sort Of Cohabitation Agreement That Can Be Created In South Carolina To Protect Unmarried Partners In Terms Of Estate Planning?

Partners who live together but are not married, or not yet married, can enter into a cohabitation agreement. This acts a lot like a premarital agreement, dictating how assets are distributed and split should you separate, with the added benefit of also coming into effect if one of you dies.

This sort of “contractual” approach to the relationship may not appeal to everyone, especially to the more romantic among us, but it can save a lot of trouble down the line. For those who prefer to avoid signing such an agreement, other estate planning measures may feel more appropriate.

What Other Legal Documents Should Unmarried Partners Consider To Ensure Property Rights And Inheritance After Death?

If you want to pass assets on to someone you are not married to, you need, at the very least, a will. A will is the most basic of estate planning documents that designates who you wish to inherit specific assets or property after your death.

A will might not be foolproof, however, as it can be contested during probate, leaving your partner vulnerable to challenges or complications. It also leaves unclear what should happen if you are incapacitated, for example, because of an accident or illness.

A trust might be preferable, as it would give them more control during life as well as after death.

How Can A Trust Be Used To Provide Financial Security And Inheritance For An Unmarried Partner?

Trusts are a secure and effective means to pass on assets or property to someone you love, even if you are not married. While there are many different kinds of trusts, each with its own circumstances and advantages, the general idea is always the same.

When creating a trust, you set aside assets, property, or wealth, signing them over to the trust with conditions for how they will be used or distributed. For example, you can pass the income from those assets on to your unmarried partner.

Trusts are perhaps the best way to provide security for your unmarried partner because assets set aside for the trust will not go through probate. This prevents other relatives, or former spouses, from contesting or fighting over the assets or property.

How Can Estate Planning Strategies Help Minimize Conflicts Between Unmarried Partners And Other Family Members?

The best way to avoid conflicts between a current partner and relatives, or previous family members, is to leave your assets or property to them through a trust. Trusts entirely bypass the probate process, which is where most arguments arise.

Probate gives relatives and former family members the opportunity to make claims against an inheritance, even if it is in a will. For example, they might argue that the deceased person was under duress, or the will was not legitimate for some other reason. Even if they do not succeed, such claims can end up taking a long time, and a lot of money, to resolve.

With a trust, you avoid probate and the time and expense associated with it. This helps prevent the challenges that may arise during probate, especially for real estate property.

How Can Unmarried Partners Ensure Their Real Estate Property Is Passed On According To Their Wishes?

The best way to guarantee that real estate property is passed on according to your wishes, including to an unmarried partner, is to plan ahead with a trust. Create the trust, place the real estate property in it, and name that person as the beneficiary.

If you do not have a trust, you can pass real estate on to someone through a will, but there is more risk and cost associated with this process. An estate planning attorney can help you draft your will to protect both your property and unmarried partner, or set up a trust to do both.

Can Life Insurance Be Used As A Tool For Estate Planning To Provide For An Unmarried Partner?

Another tool that can be quite effective in providing some security for an unmarried partner is life insurance. The insured person can simply name whomever he or she wants as the beneficiary within their policy, and that person will get the payout in the event of their demise.

Can Unmarried Partners Name Each Other As Beneficiaries On Retirement Accounts Or Life Insurance Policies?

Retirement accounts, like life insurance, can serve as a helpful tool for estate planning. However, while unmarried partners are allowed to benefit, this is only if they are explicitly named as the beneficiary. You need to be sure that the beneficiary form is filled out and names the person you want to benefit from the life insurance or the retirement account.

This is particularly relevant when you leave a relationship or start a new one, as policies have to be updated. Delaying these updates could cost your loved one all of those benefits. Alternatively, if no beneficiary is named, the life insurance or retirement account will go to that person’s estate and relatives.

An estate planning attorney can help you ensure that these policies are all updated on a regular basis.

Are There Legal Limitations On The Ability Of Unmarried Partners To Make Medical Decisions For One Another?

While we have covered in some depth the eventualities surrounding property and inheritance after the death of an unmarried partner, they are not the only circumstances where your rights can be surprisingly limited. An unmarried partner also has no legal rights to make any healthcare decisions for their partner if, for example, they are put in a coma or paralyzed after an accident.

However, this can be solved with a living will document, or a healthcare power of attorney that names their partner as the agent. With this in place, the unmarried partner can make medical decisions based on what is in those documents. Both can be set up with the help of an estate planning attorney to ensure your desires are respected.

For more information on Estate Planning For Unmarried Partners In SC, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (864) 271-7940 today.

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