If you do not put your own plan in place for your incapacity or death,
the state in which you live usually has a default plan in place for you.
If you are a married couple, the default plan usually assumes that you
want your spouse to act on your behalf if you are incapacitated and you
want your spouse to be included as a beneficiary of your estate upon your death.
Although the default plan may not get your wishes exactly right, especially
if you have children from a previous relationship, it does recognize and
include your spouse and therefore it gives you and your spouse the protection
of a basic legal safety net.
Unmarried couples do not have the benefit of this basic legal safety net
because if they don’t put a plan of their own in place, they get
the state default individual plan, not the state default married couple
plan. The state default individual plan assumes that you want your blood
relatives to act on your behalf if you are incapacitated and you want
your blood relatives to be included as beneficiaries of your estate upon
your death, not your significant other.
So, in the case of the committed but unmarried couple, the default plan
may not get your wishes right at all and your significant other could
find himself or herself on the sidelines unable to legally participate
in your care or the distribution of your estate. It is this absence of
a legal safety net reflective of most committed but unmarried couples’
wishes that makes it very important that they take the steps to put their
own estate plan in place that affirmatively includes their significant other.