Too many unmarried couples in North Carolina find out too late that protections afforded to married couples don’t automatically apply to their situation.
For unmarried couples, it’s easy to overlook the potential benefits of a thoroughly completed estate plan, especially if you and your partner have kept your assets separate. North Carolina does not recognize common law marriage, and even if you are married, you do not receive automatic spousal privilege.
The Basic Estate Planning Tools for Unmarried Couples in NC
Although you should always meet with an estate planning lawyer to talk through specifics, at a bare minimum, there are three primary documents that every unmarried couple should complete to protect their interests.
- Will or a trust. A will determines how your estate will be transferred when you pass away and who will receive what. You can accomplish many of those same goals with trust, although it’s more advanced as a tool and allows for more privacy.
If you want everything you own to transfer to your partner, you’ll want to list this and beneficiary designations. Otherwise, without a will, the state of North Carolina determines what happens to your property. The existing laws do not protect unmarried partners and does not give your partner any priority or any portion of your estate.
A revocable living trust might be another way to protect your interests, so long as you put the title of the assets in the trust's name. Many clients prefer revocable living trusts as they reduce the court’s involvement in the settling of your estate and help keep more of your financial affairs private.
- Healthcare directive. It gives explicit instructions about end-of-life decisions if you have specific feelings about this. For example, perhaps you don’t want to be supported by life-sustaining equipment if there is little to no hope of recovery for you. If you have opinions about when you want to receive additional care versus when you’d like another decision made, put this in your advanced directive.
You want your partner to be clear about your wishes here and not worry about what choice you might have made. Here, you’re doing the hard work for them by explaining what you wanted so that if you’re ever unable to articulate that on your own, your partner can take those steps.
- Financial power of attorney. Without a power of attorney, your unmarried partner cannot make financial decisions or sign paperwork for you if you become sick or incapacitated. Whether your partner needs to take short-term or long-term care of your finances, you want this transition to be as easy as possible for them. If you’re in an accident or dealing with a long-term illness, empower them to take quick action with this document.
Why Unmarried Couples Still Need Planning
There are many reasons couples choose not to get married, but one situation that works against their situation is by not being legally married it removes some critical protections for them and their loved ones.
Some of the protections that unmarried couples do not receive are:
- They are not automatically afforded the right to be their partner’s healthcare proxy.
- Unmarried couples may be barred from learning about their loved one’s health issues in the event of emergencies, as well.
- Couples who are unmarried don’t have the ability to automatically handle their partner’s finances.
Being unmarried gets even more complicated when you’re parents. It is not automatically assumed that just because you are the child’s parent, they can inherit from you. North Carolina requires unmarried parents to legitimize their children in the eyes of the State, otherwise their right to inheritance is not promised.
But how do you legitimize your child?
Legitimizing Your Child in the Eyes of the State
There are currently four options to legitimize your child:
Marry the Child’s Mother After the Birth of the Child
If the father marries the mother of the child after the birth of the child, then the child is legitimized.
Initiate a Legitimization Proceeding
The father may institute a legitimization proceeding if the parents do not wish to get married. To file a legitimization proceeding, the father must file a verified petition. If the mother was not married from the time of conception through birth, then the mother must be named as a party and be properly served notice. If the mother is, or was, married from conception through birth, then the spouse of the mother must also be a party and receive service.
For example, Matt wishes to go through a legitimization proceeding for his daughter Kat. Matt will have to file a verified petition. Kat’s mother, Pat, was married to Jim at the time of conception through birth. Therefore, Matt must serve and make both Pat and Jim parties to the proceeding. This option involves going to court, which can be messy.
Legally Acknowledge Yourself as Father of the Child
The father may create a path to inheritance by acknowledging the child. The father must file an affidavit (a sworn statement used as evidence) acknowledging the child during his lifetime and the lifetime of the child.
This process does not legitimize the child, but it does create a path toward inheritance. The affidavit must be filed with the clerk of the superior court. If an affidavit is signed at the birth of the child, it must also be filed with the clerk of court in the county where the father or child lives. Being listed on the birth certificate as an unmarried father is not sufficient for inheritance purposes.
For example, Ben and Sally are not married, and they had a child together. Ben is listed as the father on the birth certificate. For inheritance purposes, Ben must also file an affidavit with the clerk of the superior court.
By signing this affidavit, the father is securing his right to ask the court for expanded custody and visitation. He’s basically providing supporting documentation to the state that he is the father, and wants to be involved in the child’s life.
File a Paternity Suit
The mother, father, or child may file a paternity suit to establish paternity. If the court finds paternity, then the child may inherit from the father. If the child is over three years old, or if the paternity suit is brought after the death of the father, evidence from a blood or genetic marker test is required to establish paternity. Paternity suits must be started before the child’s eighteenth birthday.
If the child is an adult, then in North Carolina, a paternity suit cannot be used to prove paternity for inheritance purposes.
For example, Mary, age 27, wants to file a paternity suit against Bill, who she thinks is her father. Since Mary is an adult, she may not file a paternity suit to create a path to inheritance. However, if Mary’s mother would have filed a paternity suit with Bill when Mary was seventeen, then the results could be used for inheritance purposes.
Skip Legitimization With Estate Planning!
All the above methods focus on legitimizing the child, but the child does not have to be legitimized to receive an inheritance if you’ve set up an estate in their name.
Carolina Family Estate Planning Will Help You Get Your Ducks In A Row
If you’re an unmarried couple with questions about estate planning and ready to meet with an estate planning attorney, reach out today. At Carolina Family Estate Planning, we understand each situation is unique and we want to make sure you and your loved ones are protected.
By implementing an estate plan now, you will protect your interests, including assets, long-term care planning, and healthcare directives. Don’t delay. Call us today at 919-629-9214 or schedule a 15-minute needs assessment call.