The judge began his ruling as follows: Erle Stanley Gardner, the author of the Perry Mason series, started the title of all his books with “The Case of the …….” My title for this matter is “The Case of the Great Procrastinator.”

During trial for this case, I called numerous witnesses on behalf of my client to testify that my client had lived with her boyfriend for at least five years prior to his untimely death at a relatively young age, that he wanted her to have his pension and other property should something happen to him, that he had promised to marry her after his divorce became final, that my client had quit her job in order to fix up their residence in anticipation of its sale, and that he intended to sell the residence and a second property and purchase a property in the mountains which he intended to take title to in both of their names. All of this testimony was largely unchallenged, yet the judge held that my client would receive nothing from her boyfriend’s intestate estate and his children and ex-wife, all of whom he did not have a good relationship with, would receive it all. How could this happen?

Like gay and lesbian couples, unmarried couples of the opposite sex are considered legal strangers under the law. California law does not recognize the concept of “common law marriage,” which is recognized in a minority of states. While the famous case Marvin v. Marvin, involving actors Lee Marvin and Michelle Triola Marvin, resulted in the possibility of an unmarried partner asserting an express or implied contract claim against the other partner based on promises made during the relationship, the existence of such contract and what was actually promised is not always easy to prove – as illustrated by my client’s case.

If one partner becomes ill or develops a mental incapacity such as dementia, Alzheimer’s or Parkinson’s Disease, California law gives preference to appointing blood relatives to make the personal and health decisions for the incapacitated partner. Conservatorships are often needed where hospitals and care facilities are not certain whether to follow the instructions of the unmarried partner or the blood relative. In such circumstances, the law will favor the appointment of a blood relative in most circumstances. This means the other partner will have very little, if any, power with regard to the health care, placement and funeral decisions of the incapacitated partner. The law also favors family members with regard to the management of finances. Without proper planning, a hostile family member may refuse to assist the other partner financially.

Should one of the unmarried partners die without the proper planning in place, as with my client in the case above, much, if not all, of that partner’s assets will go to blood relatives – despite any promises that may have been made between the unmarried partners to care for one another. In concluding his decision, the judge in my client’s case said he could think of at least six that her deceased partner, the great procrastinator, could have provided for my client but did not – (1) finalizing his divorce and marrying her, (2) placing her as joint tenant on his real property and other assets, (3) naming her as beneficiary of his retirement plans and life insurance, (4) drafting a handwritten or holographic Will expressing his desires or consulting with an attorney to have either a professionally drafted (5) Will or (6) trust prepared.

Planning Strategies

The issues that arise in planning for unmarried partners are the same as those that arise in planning for gay couples. Each partner should have an advance health care directive and HIPAA authorization form for the other partner, a power of attorney for property appointing the other partner as agent, a will spelling out what the partner desires to have happen with his or her property after death, and if the circumstances warrant, either a separate trust for each partner, a joint trust for the couple, or a combination of the two. In instances where unmarried partners have children from previous relationships and assets acquired before and after the relationship developed, it is not uncommon for us to draft a trust to hold his separate assets, a trust to hold her separate assets, and a joint trust to hold the assets the couple acquired during their relationship. Each of these trusts may have different provisions as to what happens with these assets upon the death of each partner.

For more on these planning strategies, visit our “Estate Planning for the GLBT Community” portion of our website to learn more about the hurdles unmarried and GLBT partners must overcome in order to provide for one another as well as to learn more about owning property as joint tenants, beneficiary designations and POD bank accounts, advance health care directives, HIPAA authorization forms, durable powers of attorney for property, Wills, trusts and California’s registered domestic partnership laws.