Living together without being married can offer freedom and flexibility, but it may also leave important gaps in legal protection. Without a clear plan, unmarried partners may face limits involving healthcare decisions, property rights, inheritance, and financial authority.
At Commonwealth Life and Legacy Counsel, husband-and-wife attorneys Michael Winget-Hernandez and Lelia Winget-Hernandez help unmarried partners create estate plans that reflect how they live and care for one another.
We help individuals and couples across Central Virginia put practical safeguards in place so that their wishes, rather than default legal rules, guide what happens during incapacity and after death.
Why Estate Planning Is Important for Unmarried Partners
Virginia law gives spouses certain rights that unmarried partners do not automatically receive. Without written documents, a partner may have no authority to manage finances, make healthcare decisions, or inherit probate property.
Common risks include:
- A partner may not have authority to make medical decisions or receive protected medical information.
- Probate property may pass to relatives under Virginia’s intestacy laws rather than to the surviving partner.
- A shared home may become part of a probate estate or pass according to the form of ownership.
- Retirement accounts and life insurance may pass to beneficiaries named on older forms.
- Personal belongings and pets may become the subject of disagreements.
When a person dies without an effective will, Virginia’s intestacy rules determine who receives probate property. An unmarried partner is not included as a spouse under those rules. Va. Code §§ 64.2-200 through 64.2-206.
A coordinated plan can give each partner clear authority and reduce uncertainty for family members.
How Commonwealth Life and Legacy Counsel Helps Unmarried Partners
We begin by learning how you own property, whom you trust, and what you want to happen if either partner becomes incapacitated or dies.
The planning process may include wills, trusts, powers of attorney, advance medical directives, deeds, beneficiary designations, and agreements addressing shared property.
Comprehensive Estate Planning Services
Estate-planning documents work best when they are designed as one coordinated plan.
Common components include:
- A last will and testament to direct probate property and nominate a guardian for minor children.
- A revocable living trust to hold selected assets and provide management during incapacity.
- A durable power of attorney authorizing an agent to handle financial or legal matters.
- An advance medical directive appointing a healthcare agent and stating treatment preferences.
- Updated beneficiary designations for life insurance, retirement accounts, and other nonprobate assets.
- Deeds and ownership arrangements that match the intended plan.
Each document should reflect how the property is owned and how the partners want it managed or transferred.
Cohabitation and Property Agreements
A written agreement can establish how unmarried partners will handle jointly used or separately owned property.
Depending on the couple’s needs, an agreement may address:
- Ownership of current and future property
- Contributions toward a home or other major assets
- Responsibility for shared expenses and debts
- Business interests
- Personal property and pets
- Buyout terms
- The sale or division of property if the relationship ends
A cohabitation agreement is not a substitute for a will, trust, power of attorney, or beneficiary designation. It may, however, help document the partners’ financial expectations and reduce later disputes.
Healthcare Planning
An unmarried partner does not automatically receive authority to make healthcare decisions simply because the couple lives together.
A Virginia advance medical directive allows a capable adult to appoint an agent to make healthcare decisions if the person later becomes incapable of making an informed decision. It may also state instructions about medical care. Va. Code §§ 54.1-2981 through 54.1-2993.
A written advance directive generally must be signed in the presence of two witnesses. Va. Code § 54.1-2983.
The plan may also include authorization for healthcare providers to share protected medical information with the partner or another trusted person.
Financial Powers of Attorney
A durable power of attorney can authorize a partner or another trusted person to handle financial and legal matters.
Under Virginia law, a durable power of attorney remains effective despite the principal’s later incapacity unless the document provides otherwise. An agent who accepts the appointment must act within the authority granted, in good faith, and according to the principal’s reasonable expectations when known. Va. Code §§ 64.2-1600 and 64.2-1612.
The document may authorize the agent to address matters such as:
- Paying bills
- Managing accounts
- Handling insurance
- Signing tax documents
- Managing real estate
- Communicating with financial institutions
The authority depends on the language of the document. Some powers require an express grant under Virginia law.
Asset Titling and Ownership
The way property is titled can determine what happens when one owner dies.
Virginia allows people to own real or personal property jointly with or without a right of survivorship. Merely using words such as “jointly” or “joint tenants” does not necessarily create survivorship. The intent to create survivorship must be shown in the ownership document. Va. Code §§ 55.1-134 and 55.1-135.
Common forms of ownership include:
- Tenancy in common: Each owner has a separate share. At death, that share passes under the owner’s estate plan or Virginia’s intestacy rules.
- Joint tenancy with right of survivorship: The surviving owner generally receives the deceased owner’s interest by operation of the ownership arrangement.
- Trust ownership: A properly funded trust holds title and controls how the property is managed or transferred.
Tenancy by the entirety is generally available only to married spouses and is therefore not an ownership option for unmarried partners. Va. Code § 55.1-136.
Changing title may affect control, creditor exposure, taxes, financing, and each partner’s ability to transfer an interest. The deed and the rest of the estate plan should be reviewed together.
Key Estate-Planning Documents for Unmarried Partners
Last Will and Testament
A will directs the transfer of probate property and names a personal representative to administer the estate.
It may also nominate guardians for minor children and identify who should receive personal belongings. A will can address care for a pet by naming a recipient and providing funds for care, but a pet cannot inherit property directly.
Without an effective will, probate property passes under Virginia’s intestacy rules. Those rules ordinarily direct property to relatives rather than to an unmarried partner. Va. Code §§ 64.2-200 through 64.2-206.
Revocable Living Trust
A revocable living trust can hold properly transferred assets during life and provide instructions for management during incapacity and distribution after death.
The person creating the trust may serve as trustee and retain control while capable. A successor trustee can later manage the trust property according to its terms.
A trust affects only property transferred to it. Preparing a trust agreement without funding it may leave intended assets outside the plan.
Durable Power of Attorney
A durable power of attorney authorizes an agent to handle financial or legal matters.
For unmarried partners, the document can provide authority that does not arise automatically from the relationship. It should also name an alternate agent in case the first choice cannot serve.
Advance Medical Directive
An advance medical directive may state healthcare preferences and appoint an agent to make decisions when the person cannot make an informed decision.
Naming a partner directly can reduce uncertainty about who should communicate with medical providers and make decisions. Va. Code §§ 54.1-2982 and 54.1-2983.
Beneficiary Designations
Life insurance, retirement accounts, payable-on-death accounts, and transfer-on-death accounts often pass according to beneficiary forms rather than a will.
Those designations should be reviewed after major changes in the relationship, family, finances, or estate plan. Naming a partner in a will does not automatically replace an existing beneficiary designation.
Common Questions From Unmarried Partners
How Can My Partner Make Medical Decisions for Me?
A Virginia advance medical directive can appoint your partner as your healthcare agent.
The directive may also include treatment instructions. Separate authorization may be useful for access to protected medical information when you still have decision-making capacity.
What Happens if I Die Without a Will?
Your probate property passes under Virginia’s intestacy rules.
Those statutes prioritize a spouse and blood or legally recognized relatives. An unmarried partner generally does not inherit under the intestacy order solely because of the relationship. Va. Code §§ 64.2-200 and 64.2-201.
How Can We Protect a Shared Home?
The available options may include:
- A deed creating a valid right of survivorship
- A revocable trust
- Separate wills
- A cohabitation or property agreement
- A transfer-on-death deed when appropriate
The correct approach depends on ownership contributions, mortgage terms, tax consequences, creditor concerns, children from prior relationships, and what should happen if the relationship ends.
Can My Partner Manage My Finances if I Become Incapacitated?
Not automatically.
A durable power of attorney can appoint the partner or another trusted person as agent. Without a valid document, court involvement may be required to obtain authority over the incapacitated person’s financial affairs.
What Tax Issues Should Unmarried Partners Consider?
Unmarried partners generally do not receive the same federal tax treatment available to spouses.
Potential issues may involve:
- Gifts between partners
- Capital gains
- Basis adjustments
- Retirement-account distributions
- Estate taxes for larger estates
- Income taxes on inherited assets
- Property-tax or transfer consequences
The tax result depends on the asset and the transaction. Estate-planning and tax advice should be coordinated when substantial property, retirement assets, or business interests are involved.
Planning Around Children and Other Family Members
Unmarried partners may also need to coordinate their plans with children, stepchildren, parents, siblings, or other relatives.
Important questions may include:
- Should the surviving partner have the right to remain in the shared home?
- Should children receive property immediately or after the partner’s death?
- Who should manage property for minor children?
- How should personal belongings be divided?
- Should a trust protect a partner while preserving the remainder for children?
- Who should serve if the partner cannot act as executor, trustee, or agent?
Clear instructions can reduce the chance of conflict between the surviving partner and the deceased partner’s relatives.
Reviewing a Plan After Life Changes
An estate plan should be reviewed when circumstances change.
Common review points include:
- Buying or selling a home
- Opening a business
- Having or adopting a child
- Receiving an inheritance
- Moving to another state
- A major health change
- The death or incapacity of a named agent or beneficiary
- Separation
- Marriage
- Significant changes in finances
Marriage may change inheritance rights, ownership options, tax treatment, and the effect of existing documents. A plan created for unmarried partners should therefore be reviewed if the couple later marries.
Creating a Plan That Reflects Your Relationship
Unmarried partners do not receive all of the automatic legal protections given to spouses under Virginia law. Wills, trusts, powers of attorney, advance medical directives, beneficiary designations, and ownership documents can provide the authority and protection that the relationship alone does not create.
At Commonwealth Life and Legacy Counsel, we help unmarried partners develop coordinated estate plans that reflect their relationships, property, and family responsibilities.
Call our Zions Crossroad office at 434-589-2958 or our Powhatan office at 804-598-1348, email info@winget-hernandez.com, or reach out through our contact page.
Disclaimer: This article is educational only and is not legal advice. Reading it does not create an attorney-client relationship.