Florida Elder Law & Estate Planning Blog


Florida cohabiting couples need legal plans to protect themselves, one another

June 18, 2020

Many of our clients “cohabit.” They are committed to one another and share a home, but are unwilling to marry, usually for legal and financial reasons.

If this is your situation, for all intents and purposes you may consider yourselves to be a married couple. Maybe you’ve been together for decades. Even so, Florida sees your situation differently. The state does not afford you the same protections it affords a couple with a marriage certificate.  And that’s the reason cohabiting partners need to come up with their own plans, in the event one of them becomes disabled or dies.

Generally speaking, the issues of greatest concern to couples who are living together are (1) the shared home and (2) the authority of each partner to make health care decisions or financial decisions for the other in the event one of them becomes incapacitated.

Women most likely to bear the brunt

It is important to note that although these concerns are not limited to women, a woman who is in a relationship with a man is more likely to suffer the negative fallout from failing to plan.  Greater longevity is the main reason. The classic scenario is a woman who has been residing with a man, sometimes for decades.  She may feel like part of the family and be well-liked by her partner’s adult children. But when her partner is incapacitated or passes away,  his children, using their authority under a power of attorney, or as trustees of a trust, decide they want to sell the home and want her to move out. If no protections have been put in place for her, she has no legal recourse. She has to go.

How can cohabitating couples protect one another?

  • The Home. If your partner owns the home you both live in and wants you to continue to reside there in the event of his/her death or incapacity, legal plans are needed to ensure this will happen. One good solution is to put the home in a trust that gives the partner a lifetime right to reside there (i.e., a “life estate.”) The trust can even earmark funds to pay for maintenance, taxes, etc. The trust can also indicate that the partner can continue to reside there if the owner is incapacitated. Often, such a trust specifies that the home will pass to the deceased owner’s children after the survivor’s death.

 

  • Health care decisions. If you want your partner authorized to make your health care decisions in the event you are incapacitated, you must put your wishes in writing with a valid Health Care Surrogate. Without this document, the State of Florida decides who serves as your health care proxy. If you don’t want your partner actually making your decisions but do want him/her to be able to get information about you from your health care providers, you will also need to waive HIPAA protections for your partner, in writing.

 

  • Handling an incapacitated partner’s financial affairs. As with health care decisions, you can give your partner the ability to manage your finances by making him/her your attorney- in-fact under your durable power of attorney; and/or a co-trustee or successor trustee under your trust in the event that you become disabled. Beware: It is generally not a good idea to make your partner and your adult children co-agents. That arrangement has too much potential for conflict.

 

Couples who are thinking about living together, or who are currently living together, should examine these issues and make the appropriate arrangements that protect themselves and one another. Contact our office and we can assist you!