What Happens to Your Partner If You Die Without an Estate Plan
This question is such an important one to ask. It’s such a loving question. Because the truth is that what you expect to happen and what actually happens may be worlds apart.
Let’s take a closer look at likely scenarios and how you can safeguard your loved ones and your partner. Full transparency: It’s super confusing, and I don’t blame you if you skip all the legal and technical stuff and jump straight to the end to see what to do to avoid the confusion!
Legally Married or Unmarried Partners
The first thing we need to look at is whether or not you are legally married to your partner. This can make a huge difference in how things are probated.
If you are legally married, the Court will recognize that marriage and proceed with probate under the assumption that you intended to provide for your spouse but just never got around to making an estate plan that did so.
If you are not legally married, the Court will proceed to probate your estate and make distributions to your legal heirs. Heirs include spouses, children, parents, siblings, aunts/uncles, cousins, nieces/nephews, etc. This means that your partner will not be recognized as an heir. It is important to note that common law marriages were recognized in Georgia at one time but no longer are. However, if you have a common law marriage from another state or one predating 1997 in Georgia, the state does recognize them.
Children or No Children
Another consideration is whether or not you have children with your partner or a previous partner.
If you are married to your partner and have no children, your spouse would be considered the sole heir and get everything. However, if you have children and a spouse, your spouse will get a portion, and your children will receive a portion.
In the event you are not married but have children, your children will be the sole heirs. These may be children you share with your partner or prior partners.
Keep in mind that any inheritance given to a minor child will have to be held in Trust, and the rules for how and when the funds are released to benefit the children are very strict.
Are you confused enough yet?
Joint Property or Property Owned Solely By You
If you’re married and you die intestate, the same rules apply as above. If you have no children, your spouse inherits all of your interest in any property you own. Depending on the type of property and deed, if you have children, a portion goes to the spouse and a portion to the children. This is true for property you own individually and jointly owned property.
If you’re unmarried, you may own property with your partner. Just like above, your interest in the property would pass to your legal heirs at your death.
There are rights of survivorship deeds in Georgia. These are not commonly used outside of marriages, but in the case that you did own property jointly with the right of survivorship, this means that at your death, your portion of the property would pass to the survivor and not fall into your estate assets.
There are also Lady Bird deeds which is a transfer on death deed. These are newly recognized in Georgia.
It’s Complicated
As you can see, the distribution process for estates that do not have proper estate planning is complex. This is part of the reason why probate is such a painful experience. Because when proper planning wasn’t taken before death, it now falls on the Court to follow the letter of the law. The Court is not trying to screw anyone over or make anyone miserable. They are just trying to equitably uphold the laws that were created to protect you and your heirs.
The unfortunate and tricky thing is that this is not always the end result. Sometimes, the law actually harms a family or individual. This is because not every individual and situation is the same.
This is why we say cookie-cutter estate planning isn’t enough. You are not a cookie. You are unique, and so is your situation and family. You have the agency to plan ahead and make the decisions that serve your loved ones best.
Call us at (404) 736-6066 or visit our website to schedule a consultation about how we can help you create an estate plan that cares for your partner and your loved ones well after your death.