Not every committed relationship leads to marriage—and for many couples later in life, that’s a deliberate choice. Perhaps you lost a spouse and have found companionship again but see no reason to formalize it legally. Perhaps you’ve been with your partner for decades and marriage simply isn’t something either of you wants. Or perhaps remarrying would create complications you’d rather avoid: changes to Social Security benefits, concerns about inheritance for children from a prior marriage, or simply a preference for keeping your financial lives separate.
Whatever your reasons, choosing not to marry doesn’t mean choosing not to protect each other. But it does mean the law won’t automatically provide the protections that marriage offers. If you and your partner are not legally married—and have not registered as domestic partners in California—you may have no legal authority to make decisions for each other during a medical crisis, and no right to inherit from each other when one of you passes away.
The good news: with thoughtful estate planning, you can create many of the same protections marriage would provide—and in some cases, protections that are even more tailored to your specific circumstances.
Why Some Couples Choose Not to Remarry
For older adults in committed relationships, the decision not to marry is often practical rather than philosophical. Common considerations include:
Social Security and pension benefits. Remarriage can affect survivor benefits from a deceased spouse’s Social Security or pension. For some individuals, these benefits represent a significant portion of their retirement income, and preserving them may be more important than the legal benefits of a new marriage.
Inheritance concerns. If you have children from a prior marriage, you may want your assets to ultimately pass to them rather than to a new spouse or that spouse’s family. Marriage creates default inheritance rights that can complicate these intentions, even with a will or trust in place.
Financial independence. Some couples prefer to keep their finances entirely separate. Marriage creates community property presumptions in California and can complicate the division of assets if the relationship ends. Remaining unmarried allows each partner to maintain clearer boundaries around their own property.
Simplicity. After experiencing the legal complexities of divorce or the death of a spouse, some individuals simply prefer not to create another legal entanglement—even a positive one. An unmarried partnership can feel more straightforward, provided both partners understand the legal implications.
None of these reasons diminish the depth or validity of your relationship. They simply mean you’ll need to be more intentional about creating legal protections that marriage would otherwise provide automatically.
California Domestic Partnerships: An Important Distinction
Before discussing specific planning tools, it’s worth noting that California offers registered domestic partnerships, which provide many of the same legal protections as marriage. If you and your partner have registered as domestic partners with the California Secretary of State, you generally have inheritance rights, hospital visitation rights, and decision-making authority similar to married couples under state law.
However, registered domestic partnership is not the same as simply living together. Couples who have not formally registered—regardless of how long they have been together or how intertwined their lives may be—typically do not receive these default protections. California does not recognize common-law marriage, so the length of your relationship alone does not create legal rights.
Even registered domestic partners may benefit from comprehensive estate planning. Domestic partnership protections apply primarily under California law and may not be recognized in other states or for federal purposes in all situations. A well-designed estate plan can provide clarity and protection that extends beyond what registration alone offers.
Revocable Living Trusts
A revocable living trust allows you to set clear instructions for how your assets are to be managed and distributed—during your lifetime while you are well, if you become incapacitated, and after your death. While you are well, you typically serve as your own trustee and can use the assets in your trust just as you normally would. If you become incapacitated, your chosen successor trustee can step in to manage your affairs seamlessly, without court involvement. After your death, the trust directs how your property is distributed to or managed for your beneficiaries, often avoiding probate and keeping matters private.
For unmarried couples, trusts offer particular advantages. You can provide for your partner while still ensuring that your assets ultimately pass to your children or other family members. For example, a trust might allow your partner to remain in your shared home for their lifetime, with the property passing to your children after your partner’s death. This kind of arrangement is difficult to achieve without a trust.
Wills
A last will and testament (commonly called a will) allows you to direct what will happen to your property at your death and to nominate someone—often called an executor or personal representative—to carry out your wishes. While a will can accomplish many of the same goals as a revocable living trust, it does not provide a means to manage your affairs if you become incapacitated. It also must go through the court-supervised probate process, which can make things more time-consuming, public, and costly for your loved ones.
A special type of will, known as a pour-over will, serves as a safety net for anything you may have forgotten to transfer into your trust during your lifetime. If you still own something in your sole name when you pass away, the pour-over will is designed to help that asset “pour over” into your trust after your death. While your loved ones may still need to go through probate to transfer those items, this type of will helps ensure that everything ultimately ends up in the right place and is handled according to your trust’s instructions.
Joint Property Ownership Considerations
Under California law, how you and your partner hold title to shared property—particularly real estate—can significantly affect what happens to that property if one of you passes away or becomes incapacitated. Understanding your options is an important part of comprehensive planning.
Joint tenancy with right of survivorship (JTWROS) allows property to pass automatically to the surviving owner when one owner dies, without going through probate. This can be a straightforward way to help your partner receive shared property. However, joint tenancy has limitations: it doesn’t allow you to direct the property to anyone else—such as your children—after your partner’s death.
Tenancy in common allows each owner to hold a specific share of the property and to direct that share to anyone they choose through their estate plan. This provides more flexibility but does not include automatic survivorship rights—meaning your share would pass according to your will or trust, not automatically to your partner.
For many unmarried couples—particularly those with children from prior relationships—holding property in a revocable living trust offers the most comprehensive protection. The trust can specify exactly what happens to the property, provide for the surviving partner’s continued use of a shared home, and address what happens after both partners have passed. This approach also avoids probate and keeps arrangements private.
Beneficiary Designations
Most retirement accounts and insurance policies allow you to designate a beneficiary—the person who will automatically receive the account when you die. It is important to review these designations periodically, particularly after major life changes. If you named a former spouse as beneficiary years ago and never updated the designation, they may still be legally entitled to receive those assets—even if you’ve since built a life with someone new.
For unmarried partners, beneficiary designations can be a simple and effective way to provide for each other. However, if you also want to provide for children or other family members, or if you want to control how and when assets are distributed, naming a trust as beneficiary may offer more flexibility.
Powers of Attorney, Advance Directives, and Similar Legal Documents
Planning for what happens after death is only one part of a comprehensive estate plan. Incapacity—when you are alive but unable to make decisions for yourself—is another situation where legal planning is essential. Without proper documents, your loved ones may have to go to court to have someone appointed to manage your medical and financial affairs. When that happens, the judge looks to California’s default rules about who gets priority—and unmarried partners are typically not on the list.
To help avoid this situation, consider creating or updating the following documents:
- Medical power of attorney: allows you to name your partner (or another trusted person) to make healthcare decisions for you if you cannot communicate them yourself
- Financial power of attorney: allows you to name someone to handle your financial and legal matters if you are unable to do so
- Advance directive: where you can express your wishes regarding end-of-life care
- HIPAA authorization: gives the people you name permission to access your protected health information so they can stay informed about your medical condition
These documents are important for everyone, but they are especially critical for unmarried couples. Without them, your partner may be shut out of medical decisions entirely—even if you’ve been together for decades.
Planning Together, Even Without Marriage
Whether you’ve been together for five years or fifty, the questions are the same: Who will make decisions for you if you cannot? Who will inherit what you’ve worked for? And how can you make sure the law doesn’t overlook the person who matters most to you?
California law may not automatically recognize your relationship, but your estate plan can. Taking the time now to create or update your plan can help honor your wishes and protect your partner—while still preserving your ability to provide for children, maintain financial independence, or achieve whatever other goals led you to remain unmarried in the first place.
Book Your Introductory Meeting Today
Meet with our team for 30 minutes to discuss your estate planning needs. We’ll help you understand your options for protecting your partner while honoring your other priorities—and help you determine if we’re the right fit for your situation.
Ready to get started? Call us at (650) 325-8276 or complete our online contact form to schedule your meeting.
