Two, three, four times a year I receive the following phone call:
“Hi. My name is _________. My boyfriend/girlfriend just died. We lived together for 20 years and now their child/brother/sister/parent has served me with eviction papers! Don’t I have a right to live in this house I shared with my boyfriend/girlfriend for the last 20 years?”
My response – “Probably not.”
Marriage entitles each spouse to certain rights. Living together does not. It is that simple. At death, here are some rights a surviving spouse is entitled to receive/exercise, which a boyfriend/girlfriend is not:
- Elect to take against the Will (and receive a statutory share of the deceased spouse’s estate);
- Live in the house for one year;
- Receive a $40,000 “family allowance”;
- Serve as Administrator of the spouse’s estate (if he/she did not leave a Will);
- Receive automobiles outside the probate process.
If you are a live-in girlfriend/boyfriend and the house you share is in the name of your boyfriend/girlfriend — and they did not name you as the transfer-on-death beneficiary or as beneficiary of the house under the Will, you will be evicted. All the stuff you accumulated together over the years — you are likely to lose those items as well. For the record, the decedent-live-in-boyfriend/girlfriend rarely has a Will, or if he/she does, it leaves everything to child/sibling/parent.
Death is bad enough for a living-together-but-not-married couple. However, medical care issues are worse. If your boyfriend/girlfriend has a stay in an Emergency Room or the ICU, you probably will not be able to see them. You absolutely cannot make a healthcare decision for him/her (unless he/she has signed a Healthcare Power of Attorney). If your boyfriend/girlfriend becomes incompetent, you cannot be appointed to be his/her guardian. Remember, whoever is appointed guardian can exclude you from even seeing your boyfriend/girlfriend, can evict you from their house and more.
When a marriage ends, there are certain rules that govern child custody, visitation and support; property division; sharing income, or spousal support, which used to be called alimony. A judge makes these decisions — if the spouses cannot make them for themselves. An unhappy ex-spouse can appeal to a higher court.
Here’s what happens when a non-married couple splits. Child custody, visitation and support rules apply. Property division becomes a partition action (real estate) or a conversion action (personal property) — perhaps in separate courts and likely not the same court deciding the child issues, which can create inconsistent with decisions. There is no income sharing. These break-ups do not have the safety net of legal protections divorcing spouses have.
If you are living together with someone, my advice is to get married.
If you are contemplating getting married, talk to an estate planning lawyer. Get a Will and Healthcare Power of Attorney drafted. If it is a second or third marriage, if children are involved, or if there are significant assets, get a prenuptial agreement — even if it’s a “death only” prenuptial agreement.
Don’t be the person who must make a call to an attorney like myself to discussion your options after your boyfriend/girlfriend dies. At The Law Office of John C. Grundy, our Ohio estate planning attorney has the skills and experience needed to help. For a no cost consultation, please contact us today. From our office in Cortland, we represent individuals and families throughout Northeast Ohio.