Legal Rights of the Unmarried in Probate Issues

By Heather Frances J.D.

Depending on your state’s laws, married couples have the right to inherit property when a spouse dies without a will. Though unmarried couples do not have any similar automatic rights when a partner dies, partners may still inherit property from each other by using other estate planning methods. Since these methods are complicated, you should consult with an attorney regarding your specific situation.

Marital Status

If your state recognizes common law marriage, you may be able to establish a legal marriage and receive spousal rights even if you were never formally married to your partner. Common law marriage is only recognized in a small percentage of states and requirements vary by state, but once a common law marriage is established in a state that allows it, the marriage can usually be transferred to any other state.


If your partner has a valid will, his estate will pass to the beneficiaries named in that will regardless of your marital status. Therefore, if his will names you as his beneficiary, you have legal rights to his estate. However, your partner can change his beneficiaries at any time. Your partner’s will also can be contested in court after his death and, if the contest is successful, the property may be distributed to other family members instead of to you.

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Joint Tenancy

One way to ensure you will inherit property you and your partner own is to establish a joint tenancy with right of survivorship. During your lifetimes, both partners own equal shares of the property. When you or your partner dies, the property will pass automatically to the surviving partner as a joint owner, regardless of marital status. This method of ownership can be used for titled property such as real estate, vehicles and bank accounts.

Transfer on Death Deed

Some states allow property owners to designate a beneficiary in the property’s deed itself, which is called a transfer-on-death deed. This deed allows your partner to keep sole ownership of a piece of real estate until the time of his death when it will be automatically transferred to his beneficiary. As with wills, a transfer-on-death deed’s beneficiaries can be changed at any time without permission from the beneficiaries.

Life Insurance

If you name your partner as the beneficiary of your life insurance policy, he will have a legal right to receive that life insurance benefit when you die. This may be an important way to ensure that your partner is financially taken care of since he may not be entitled to survivor’s benefits from Social Security or other pension plans. Before issuing an insurance policy, some insurance companies may require additional proof of why your partner, as a nonfamily member, has an economic interest in your life.

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