Legal Protection for Couples Who Aren't Legally Married
Last Updated: April 19, 2024
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Jasmine Roy, BCSC
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Ngaire King is Legal Counsel for LawDepot. Ngaire has been working in the legal field for over five years and was called to the bar in Alberta in 2020. Before becoming a lawyer, Ngaire ...
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Key Takeaways:
- Generally, married couples have more legal rights than unmarried couples.
- Legal rights for married couples may include entitlement to a share of each other's estate, exemption from testifying against each other in court, being named next of kin, tax benefits, and entitlements after a divorce.
- Unmarried couples can achieve similar legal protections through various legal documents, such as a Power of Attorney, Health Care Directive, Cohabitation Agreement, and Last Will.
Compared to unmarried couples, those who have legally tied the knot tend to have more legal rights. From being named next of kin in an emergency to being entitled to health insurance benefits, couples gain several financial and personal legal rights once they get married.
So how can unmarried couples find the same, or similar, legal protections? Or, in other words, how can a couple be essentially married (but not legally)?
Luckily, there are a few legal documents you and your partner can use to gain many of the same rights typically granted to married couples.
Properly executed documents like a Power of Attorney, Health Care Directive, Cohabitation Agreement, and Last Will can help you and your partner find the legal protection you’re looking for—without a marriage certificate.
Legal rights: married couples vs. unmarried couples
Your legal relationship status (e.g., single, common law, married, or divorced) can seriously impact your life in regards to your assets, health care, money, and more.
To begin, let’s discuss how legal rights can differ between married and unmarried couples.
Married couples
Although rights may vary depending on your jurisdiction, common rights granted to married couples can include:
- Entitlement to a share of each other’s estate: Spouses are entitled to each other’s finances, property, and assets when one of them dies. Unless specified otherwise, they’re typically entitled to the entirety of the estate.
- Exemption from testifying against your spouse in court: There are exceptions to this right, like when a spouse chooses to testify against their spouse or when a spouse commits a certain crime (such as a crime against their spouse or their children).
- Being named next of kin: This grants you the power to make health care decisions for your spouse if they are incapacitated and unable to make decisions for themselves.
- Being named a beneficiary: Various health plans, retirement plans, and insurance policies sometimes allow you to collect the benefits when your spouse passes away before you.
- Tax benefits: You may not have to pay tax on the portion of your spouse’s estate that is transferred to you after they’ve passed away.
- Entitlements after a divorce: Spouses are entitled to a fair division of property, assets, and debts if their relationship ends.
- Entitlement to alimony: A spouse may be entitled to spousal support payments after a divorce.
Unmarried couples
In some places, unmarried couples who live together and combine their affairs are recognized as common law or domestic partners; in this case, they may receive some or all of the same rights awarded to married couples.
It’s important to note, however, that the laws regarding unmarried couples vary from state to state. In states that recognize common-law marriages or domestic partnerships, couples may be granted rights such as:
- Tax benefits
- Visitation privileges (such as when your spouse is hospitalized or imprisoned)
- Being named a beneficiary in various health plans, insurance policies, and employee benefits
Many states in America do not formally recognize common-law marriages. If you’re in a relationship that exists without legal recognition, it’s likely you’ll either have limited or no rights in relation to your spouse.
As a result, unmarried couples may need the help of several legal documents, which we’ll go over in the sections below, in order to secure similar rights as married couples.
Granting your partner authority to make decisions on your behalf
When you’re legally married, your spouse is typically entitled to make financial or health care decisions on your behalf. In contrast, an unmarried couple will need special written permission before one partner is able to make legal decisions for the other.
There are many situations in which you may need your partner to act as your representative. For instance, an accident can leave you temporarily incapacitated and unable to make health care decisions for yourself. In this case, you may need your partner to give consent for certain medical treatments, such as a blood transfusion.
Alternatively, if you’re required to travel often for work, you may want your partner to handle your financial affairs (such as paying your bills or cashing checks in your name) while you’re away.
When you’re unmarried, you can grant these powers to your partner through documents such as a Power of Attorney and a Health Care Directive.
A Power of Attorney gives your partner the legal authority to manage your affairs regarding real estate, business, finance, legal matters, and more.
Furthermore, a Health Care Directive gives your partner the ability to enforce your personal health care wishes should you ever become incapable of doing so yourself.
Without these documents or proof that you and your partner are legally married, professional organizations (such as insurance companies, hospitals, banks, etc.) may not recognize your partner’s authority to act on your behalf. In this case, they may delegate someone else to represent you; this person may not know you well enough to act according to your wishes.
Protecting yourself if the relationship ends
When a married couple gets divorced, spouses typically have the right to spousal support payments (if needed) and a fair division of their combined property, assets, and debts. On the other hand, in states that do not recognize common-law relationships, unmarried couples generally have few—if any—legal entitlements during a separation.
However, you and your partner can create a Cohabitation Agreement to outline separate and shared assets, debt obligations, and spousal support payments in the event of a breakup. It’s recommended that each partner seek independent legal advice while drafting this agreement to ensure it’s fair for everyone. Courts will often honor the terms of a Cohabitation Agreement if they are fair.
With a Cohabitation Agreement, you and your partner can plan to live together, combine your affairs, and still protect yourselves from potential liabilities if the relationship ends. Without this contract, you may end up disagreeing about who’s entitled to what at the end of your relationship.
Leaving your partner a portion of your estate
Your legal relationship status can also affect your rights to inheritance. For instance, if a husband or wife dies, their spouse is typically entitled to a portion of the deceased’s estate. Although, the size of this portion can depend on several factors (such as whether or not there’s a valid Last Will or any children).
In contrast, if an unmarried person passes away, their partner is generally not entitled to any inheritance unless specified in a valid Last Will or Living Trust.
If a person dies without a Last Will (i.e. intestate), their estate is divided according to successions laws, which vary from state to state. In this case, a judge may determine who will be entitled to inherit the estate (such as the deceased’s next of kin). For an unmarried person, the next of kin may be their children or parents.
Unmarried couples can ensure their partners receive a portion of their estate by naming them as a beneficiary in their Last Will and Testament. Without this legal document, your partner may only be able to claim property that they owned with you—or they might not have any legal claim to your estate at all. Naming your partner as a beneficiary in your Last Will is a way to ensure a portion of your estate gets passed on to them when you pass away.
You don’t have to be legally married to be legally protected
Unmarried couples don’t typically have the same legal rights as married couples, but there are several legal documents you can create to get similar legal protection:
- Use a Power of Attorney to grant your partner the authority to act on your behalf for a wide range of legal and financial tasks.
- Use a Health Care Directive to give your partner the authority to make important decisions for your health care when you can’t.
- Make a Cohabitation Agreement to establish separate and shared property while you live together.
- Create a Last Will and Testament to ensure your partner receives a portion of your estate after you pass away.
These documents help to ensure your partner is involved in your life and legal affairs in the way you want them to be.
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