Unmarried couples
Marriage provides two people with a host of statutorily prescribed rights with respect to each other. While state laws no longer prevent marriage as they once did for many, plenty of today's couples of every orientation are simply opting not to marry. The planning issues are identical for all.
Health care decisions
Any party has the right under S.C. Code Section 62-5-504 to designate a health care agent who may make health care decisions on his or her behalf, and who is entitled to receive information protected by HIPAA. If you do not hold a properly executed health care proxy, and you are not the legal spouse or next of kin, you may not even be entitled to any information about your partner's status if he is hospitalized. This is the simplest, but arguably the single most important planning safeguard, particularly if your partner feels the other people in his life whose standing would trump yours may not respect his wishes. If you do not consult a lawyer for estate planning, at least avail yourself of the statutory health care power of attorney form, which is contained in its entirety within the code section above.
This document is distinguishable from a Living Will, which is your direct statement of your wishes (The Death with Dignity Act is found in Title 44 Chapter 77). If you execute a Living Will, it will trump any decision your health care agent might make with respect to withdrawing life support. A Living Will, however, will not authorize another person to receive your medical information, or to participate in decisions about your care. The health care power of attorney also has the same provisions as a Living Will, to guide or restrict your agent according to your wishes. You need both, but if you only execute one, it should be a health care power of attorney in favor of your partner, with alternates named.
This document is distinguishable from a Living Will, which is your direct statement of your wishes (The Death with Dignity Act is found in Title 44 Chapter 77). If you execute a Living Will, it will trump any decision your health care agent might make with respect to withdrawing life support. A Living Will, however, will not authorize another person to receive your medical information, or to participate in decisions about your care. The health care power of attorney also has the same provisions as a Living Will, to guide or restrict your agent according to your wishes. You need both, but if you only execute one, it should be a health care power of attorney in favor of your partner, with alternates named.
The right to inherit
Without a Will, a legal spouse is still assured of a share in her partner's estate. Some couples mistakenly think they will have "common law" spouse standing which will permit them to inherit, only to fight an uphill legal battle. Writing a Will completely avoids the problem. And further, common law marriage was abolished in South Carolina on July 24, 2019. There is simply no good reason not to make a Will.
While an unmarried couple will not be given the benefit of the Federal marital deduction for estate tax purposes, the $12,060,000 current exemption amount removes this as a concern for most people. For those with assets in excess of this amount, proper tax planning can greatly reduce the estate tax burden, just as widows and widowers plan for the reduction of estate taxes at the second death before passing property to surviving children. All of these same techniques are equally useful for unmarried partners.
While an unmarried couple will not be given the benefit of the Federal marital deduction for estate tax purposes, the $12,060,000 current exemption amount removes this as a concern for most people. For those with assets in excess of this amount, proper tax planning can greatly reduce the estate tax burden, just as widows and widowers plan for the reduction of estate taxes at the second death before passing property to surviving children. All of these same techniques are equally useful for unmarried partners.
Avoiding family controversy
If you have any reason to think your surviving family members will challenge your partner's right to your estate under the terms of your will, you should consider including a "no contest" provision, stating that any one who challenges your Will without probable cause will forfeit any benefit he might receive from your estate. A no contest clause is most effective when the expected challenger actually receives a bequest of some amount under the Will, and will thereby actually stand to lose something.
However, you can also distribute your estate using a revocable trust. The limitations on contesting the validity of a revocable trust are much stricter than those for contesting a Will. SC Code Section 62-7-604 provides an action contesting the validity of a revocable trust must be made within the earlier of one year after the settlor's death, or 60 days after the trustee sends the person a copy of the trust instrument and notice of the time allowed for commencing a proceeding. Your estate plan can be made "bullet proof" within a two month period, simply by sending everyone who would otherwise be an intestate heir a copy, and informing them they have 60 days to bring a judicial proceeding to challenge the instrument on any ground.
However, you can also distribute your estate using a revocable trust. The limitations on contesting the validity of a revocable trust are much stricter than those for contesting a Will. SC Code Section 62-7-604 provides an action contesting the validity of a revocable trust must be made within the earlier of one year after the settlor's death, or 60 days after the trustee sends the person a copy of the trust instrument and notice of the time allowed for commencing a proceeding. Your estate plan can be made "bullet proof" within a two month period, simply by sending everyone who would otherwise be an intestate heir a copy, and informing them they have 60 days to bring a judicial proceeding to challenge the instrument on any ground.