Dear Jonathan: A little over 11 years ago, both my husband and the wife of my husband’s best friend passed away within a few months of each other. Approximately one year later, my husband’s best friend, Joe, and I started dating and not long after that we moved in together. That was 10 years ago and we are still together, but we never married. I would like to be married but Joe is not of the same mind. Isn’t it more beneficial from a legal perspective to be married as opposed to living together? I should also point out that we do not live in a state that recognizes common law marriages.

Jonathan Says: This is a great question and timely because it seems like more and more people are choosing to live together rather than get married. There are many benefits, legal and
otherwise, available to married couples that are not available to unmarried partners. Those benefits include:

• A spouse is legally entitled to a portion of a deceased spouse’s estate even if the deceased spouse did not make a will.
• A spouse has priority to be appointed guardian and/or conservator for a disabled spouse which gives that spouse the right to make decisions on behalf of the disabled spouse.
• Married couples can transfer an unlimited amount of assets to each other without incurring gift or estate taxes.
• Married couples can file joint tax returns which may help in reducing their overall income tax.
• A spouse can obtain health insurance through his or her spouse’s employer.
• In the event of a divorce, each spouse would be entitled to a share of the marital property.
• A surviving spouse is entitled to Social Security survivor’s benefits.
• A spouse who is a beneficiary of a deceased spouse’s IRA can treat it as his or her own IRA, delay taking distributions until age 70-1/2 and name his or her own beneficiaries.
• A spouse has the legal right to be named the beneficiary of the other spouse’s 401k plan.
• Spouses are able to own real property as tenants by the entireties which provides enhanced liability protection from creditors.
  There is also the emotional benefit which comes with being married, which cannot be understated. None of the above-stated benefits are available to unmarried couples. However, unmarried couples can partially level the playing field by engaging in estate planning. For example, you and Joe could each:
• Prepare wills which name the other one of you as the beneficiary.
• Name the other one of you as the beneficiary of a life insurance policy or an IRA.
• Prepare durable power of attorneys for financial and health care matters appointing each other as agent and patient advocate, respectively, which will allow each of you to make decisions for the other one of you in the event of a disability.

You could also title your home as a joint tenancy with full survivorship rights, which will assure that the one of you who survives will have complete ownership of the home.

In my view, being married certainly would be a better option than living together. If you choose not to get married, then at a minimum you should engage in estate planning for the reasons mentioned herein. I encourage you and Joe to consult with an attorney who can review all of this with you in more detail, which will allow the two of you to make an informed decision going forward. Good luck.

Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, PC, 1700 East Beltline, N.E., Grand Rapids, Michigan 49525.

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