Estate Planning for Unmarried Couples | Ridley Law

What’s inside the guide

• How California’s intestate succession laws treat a partner you never married
• Which documents let you name your partner as beneficiary, agent, and decision-maker
• What a will alone does for an unmarried couple, and where it falls short
• How a funded revocable living trust can direct assets to a partner outside of probate
• How property titling affects what your partner actually receives
• The gap between a verbal understanding and something a court will enforce

Frequently Asked Questions

Does my partner inherit anything if I die without a will in California?

Under California’s intestate succession statutes, an unmarried partner generally inherits nothing. Those statutes, not your personal wishes, decide who gets your property when there is no will or trust, and they hand the estate to a fixed line of blood relatives and spouses. Prob. Code §6400 establishes that the intestacy rules control, and Prob. Code §§6401-6402 lay out the order of inheritance, which does not include an unmarried partner or an unadopted stepchild at any point.

Can a living trust give my partner the protection marriage would?

A trust document controls who receives your property, and it does not care whether you are married. A properly funded revocable living trust passes assets directly to the people you name, including an unmarried partner, without going through the public, court-supervised probate process. The key word is “funded”: a trust only controls the assets actually retitled into it.

What happens to a house we own together if we’re not married?

How the house is titled matters more than the relationship status of the owners. Property held in joint tenancy generally passes to the surviving co-owner outside of probate regardless of marital status, while property held in one partner’s name alone follows whatever plan, or lack of one, that partner has in place. Getting the title and the estate plan to match is part of what protects a surviving partner.

For the documents that put this into place, see our California living trust page.

When You’re Together but Not Married

California’s inheritance rules only recognize spouses and blood relatives. If you’re not married, the law treats your partner like a stranger, no matter how long you’ve been together. This guide is how you fix that with paperwork instead of a marriage license.

The one thing

California intestacy gives an unmarried partner nothing. After twenty years together, if you die without documents, the default heir is your partner’s cousin, not you. The law doesn’t know you’re a couple, and it won’t guess. You have to write it down.

Start here: what the law does when you do nothing

When someone dies without a will or trust, California hands their property to a fixed list of relatives: spouse, then children, then parents, then siblings, then further out (Prob. Code, § 6400 et seq.). An unmarried partner isn’t anywhere on that list. Not first, not last, not at all.

So the house that was in your partner’s name alone goes to your partner’s family. You could have paid half the mortgage for a decade and it changes nothing. The joint checking account may survive by survivorship, but the home, the retirement account, the car in one name, those follow the statute straight past you.

Forgive me for being blunt, but it’s my job: for unmarried couples, doing nothing is the single most expensive choice on the table.

The part nobody expects: the hospital problem comes first

Inheritance is the death problem. There’s a living problem that hits sooner and hurts worse. If your partner is in a hospital bed and can’t speak for themselves, the people who make medical decisions are the legal next of kin. That isn’t you.

Without an advance health care directive naming you, you may not get to decide, and depending on the facility you may not even get information or access. An estranged parent or a distant sibling can outrank the person who actually shares the life. A directive fixes this, and it takes an afternoon.

One option: registered domestic partnership

If you want the legal package that marriage gives without getting married, California offers registered domestic partnership. Registration is open to any two adults 18 or over (Fam. Code, § 297), and it has to be a Declaration of Domestic Partnership filed with the California Secretary of State. A city or county registry does not count. Under California law a registered partner is treated like a spouse for inheritance, hospital decisions, and nearly everything else (Fam. Code, § 297.5).

It isn’t for everyone. It carries most of the legal weight of marriage, including the obligations, so it’s a real decision rather than a shortcut. And it stops at the state line, which is the part most couples don’t know.

Where registration stops: federal law does not recognize it

Rev. Rul. 2013-17 holds that for federal tax purposes the words spouse and marriage do not include a registered domestic partnership or any similar status a state does not call a marriage. The IRS issued that in the same year it began recognizing same-sex marriages. It recognized the marriages and declined to recognize the parallel statuses, and nothing has changed it since.

The most expensive consequence is your house.

When a married Californian dies, both halves of the couple’s community property get a new basis at date-of-death value under 26 U.S.C. § 1014(b)(6), so the survivor can sell and owe nothing. That statute is keyed to a surviving spouse. IRS Publication 555, the community property publication, states the rule and then adds four words in parentheses: “(this rule doesn’t apply to RDPs).”

On a house bought in 2005 for $400,000 and worth $1,200,000 when the first partner dies, a married survivor sells with no gain. A registered partner takes a basis of roughly $800,000, has $400,000 of gain, excludes $250,000 of it, and pays tax on $150,000. At 15 percent federal and a 9.3 percent California bracket that runs about $36,450.

Retirement accounts are the other big one. A surviving spouse can roll an inherited 401(k) or IRA into their own account. A surviving partner never can, no matter how long the relationship lasted (26 U.S.C. §§ 402(c)(9), 408(d)(3)(C)).

One place registration does reach through federal law: Social Security. The statute treats an applicant as a spouse if state intestacy law would give them a spouse’s share (42 U.S.C. § 416(h)(1)(A)(ii)), and California does, so SSA recognizes registered California partners for spousal and survivor benefits. A couple who never registered gets nothing under either route.

For most couples, the answer is to marry

Marriage is the only thing that fixes the federal half, and the federal half is where the money is. No trust provision and no drafting technique produces a full basis reset or a spousal rollover for a couple who isn’t married.

Marrying your own registered partner does not end the registration. Fam. Code, § 299(e) lets partners who are also married to one another dissolve both in a single petition, which means both statuses can exist at once. You keep what California already gives you and add what it can’t.

The other side belongs in the same breath. Marriage carries support obligations and liability exposure that a registered partnership handles differently, and some people register specifically to keep a benefit that turns on being unmarried. That’s a decision about your relationship, not about a tax return. Our job is to price the alternative accurately so you’re choosing with the number in front of you.

The other option: build the kit yourself

If registration isn’t right for you, you get the same protections by assembling the documents deliberately. This is the route most unmarried couples take, and done properly it works.

• A will or trust naming each other. This is what overrides the intestacy list. A funded trust also keeps the transfer private and out of probate
• An advance health care directive. Names your partner to make medical decisions and to have access and information. This is the one to sign first
• A durable power of attorney. Lets your partner handle finances if you’re incapacitated. Without it, they’re locked out of accounts they may depend on
• A HIPAA authorization. Clears the door for your partner to receive medical information
• Current beneficiary forms. Retirement accounts and life insurance pass by beneficiary designation, not by your will. If your partner isn’t named on the form, your will can’t help them

The shared home: how you hold title decides a lot

For a home you own together, the way title is held controls what happens at the first death. Joint tenancy carries an automatic right of survivorship: the survivor takes the whole property outside of probate. It’s simple, and for many couples it’s the point.

Tenancy in common plus a trust gives you more control over each person’s share and where it lands, which matters if either of you has children or wants a specific plan for their half. One caution on taxes: married and registered couples can hold property as community property and get a full basis step-up on both halves at the first death. Unmarried couples can’t, so only the deceased partner’s share steps up. That’s a real difference at sale time, and it belongs in front of your CPA (26 U.S.C. § 1014, confirm application with your CPA).

The honest caveat: if you split up

Estate documents are revocable. If the relationship ends, you change the will, the directive, and the beneficiary forms, and you should do it right away, because a stale form can still name an ex. That part is easy to undo.

What isn’t automatic is the co-ownership. A house you bought together, a business, a shared account, those don’t sort themselves out because you broke up. A written co-ownership or property agreement isn’t estate planning, but for unmarried couples it’s the companion piece that keeps a breakup from turning into a lawsuit over the same property.

Four moves, in order

1. Sign the directive first. The health care directive and HIPAA authorization protect you at the hospital, which is the risk that can hit any day. Two witnesses and you’re done. Start here.
2. Fix the beneficiary forms. Pull the actual forms on your retirement accounts and life insurance and name your partner and a backup. These outrank your will, so they come before it.
3. Make the will or trust. This is what writes your partner into the plan the intestacy list leaves them out of. A funded trust also keeps it private and out of court.
4. Review the title on the house. Decide between joint tenancy and tenancy in common with a trust, and paper a co-ownership agreement while you’re at it. Loop in your CPA on the step-up question.

This is general information about California law, not legal advice, and reading it doesn’t make you a client. Eligibility and rules for domestic partnership change over time; confirm current rules before you rely on them. Federal tax points, including the basis step-up, should be confirmed with your CPA.

Sources

• Prob. Code, § 6400 et seq. (intestate succession; an unmarried partner is not an heir)
• Fam. Code, § 297 (who may register), § 297.5 (rights and obligations of registered domestic partners), § 299(e) (dissolving a partnership and a marriage between the same two people in one proceeding)
• Rev. Rul. 2013-17, 2013-38 I.R.B. 201 (for federal tax purposes, spouse and marriage do not include a registered domestic partnership)
• 26 U.S.C. § 1014(b)(6) (the community property full basis adjustment at death is keyed to a surviving spouse; it is not available to registered domestic partners, per IRS Pub. 555. Confirm application with your CPA)
• 26 U.S.C. §§ 402(c)(9), 408(d)(3)(C) (rollover of an inherited retirement account is limited to a surviving spouse)
• 42 U.S.C. § 416(h)(1)(A)(ii) and SSA POMS PR 05005.006 (Social Security recognizes California registered domestic partners through state intestacy law)

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