Estate Planning Checklist for Unmarried Couples (2026)

Why the default rules leave your partner with nothing

Here is the part that surprises people. When someone dies without a will, every state has a backup plan called intestate succession, and that plan has a fixed guest list: a legal spouse, then children, then parents, then siblings, then cousins. A partner you have lived with for two decades is nowhere on it.

California is a clean example. Under California Probate Code §6402, anything that does not pass to a surviving spouse goes to the decedent's children, and if there are none, to parents, then to siblings and their children, and on down the bloodline. There is no line for "the person I built a life with." New York (EPTL §4-1.1) and Texas (Estates Code §201.001) work the same way. Registered domestic partners get protection in a handful of states like California, but an ordinary cohabiting couple does not.

That is the whole reason this checklist exists. Married couples get dozens of protections handed to them by operation of law. Unmarried couples get the same protections only if they build them, document by document. The good news: almost all of it is straightforward once you know what to sign.

The spouse-only tax breaks you don't get

This is the most underexplained piece of the topic, so we are going to be specific. The federal tax code hands married couples a set of advantages that are written, word for word, to apply only to a "surviving spouse." Unmarried partners are excluded from every one of them. Here is the side-by-side, with the source for each cell.

Get the 2026 numbers right

Most articles on this subject are running on stale figures, which matters because the figures changed. For 2026, the federal estate, gift, and generation-skipping exemption is $15,000,000 per person, and the annual gift-tax exclusion is $19,000 per recipient. The One Big Beautiful Bill Act set that $15M number, made it permanent with no scheduled sunset, and indexes it to inflation. The $19,000 annual exclusion is a separate figure that is also indexed to inflation and ticks up over time, so it is not "locked" the way the exemption now is. You can confirm both current figures straight from the IRS: the $15M estate exemption and the $19,000 annual exclusion. If a page tells you the exemption is $12.06M or the exclusion is $16,000, it was written before this change and you should not trust its tax advice.

The gift-on-the-deed trap

Because there is no marital deduction, a generous move between partners can become a reportable gift. Add your partner to the deed of a house worth $500,000 and you have just given away roughly $250,000 of value. Spouses can do that freely. You cannot. The IRS states plainly that "gifts to your spouse" are not taxable gifts, a break that exists only for spouses.

The five documents every unmarried couple needs

This is the core of the checklist. Five documents, and the reason each one matters more for an unmarried couple than for a married one.

1. A will. Without it, intestacy law takes over and your partner gets nothing. The will is also the only place you can name a guardian for your minor children. A trust cannot do that.
2. A revocable living trust. Assets in the trust skip probate, which keeps your wishes private and gets property to your partner faster, without a court process where a hostile relative could intervene. For unmarried couples, the privacy and the avoidance of probate are the whole point.
3. A financial durable power of attorney. If you are incapacitated, this lets your partner pay the mortgage, manage accounts, and keep your life running. Without it, your partner has zero authority and a relative or a court-appointed stranger may step in.
4. A healthcare power of attorney (medical proxy) with a HIPAA authorization. This names your partner to make medical decisions and, critically, the HIPAA release lets doctors actually talk to them. Sign both. One without the other leaves gaps.
5. An advance directive (living will). This records your wishes on life support and end-of-life care so your partner is carrying out your instructions, not guessing, and not being overruled by your next of kin.

Beneficiary forms, IRAs, and the 401(k) trap

Your will does not control your biggest accounts. A 401(k), an IRA, a life insurance policy, and any payable-on-death or transfer-on-death account all pass by the beneficiary designation on file with the institution. That form overrides your will every time. So the single highest-value hour in this whole process is logging into each account and confirming your partner is named.

The inherited IRA 10-year rule, done correctly

Here is where most articles oversimplify and get it wrong. Under the SECURE Act, a non-spouse who inherits a retirement account generally has to empty it within 10 years, and cannot do the spousal rollover or lifetime "stretch." That much is true. But IRS Publication 590-B carves out a category called an eligible designated beneficiary, and one of those categories is "any individual who is not more than 10 years younger than the IRA owner."

How to hold title to your home

How you own property together decides who gets it when one of you dies, and it can quietly override your will. Three ways to hold title, and the trade-offs:

• Joint tenancy with right of survivorship (JTWROS). When one owner dies, the other automatically owns the whole thing, no probate, no will needed. This is the cleanest way for partners to make sure the survivor keeps the home. The catch: adding a partner to a deed you already own can be a reportable gift (see Form 709 above), and a co-owner's creditors can reach the property.
• Tenants in common. Each of you owns a defined share (say 60/40 to match what you each put in). But your share does not automatically pass to your partner. It goes through your will or your trust, so you must name your partner there or it lands with your relatives.
• Sole ownership. One name on the deed. The other partner has no ownership, full stop, no matter who paid the bills. If that is your situation, a will, a trust, or a cohabitation agreement is the only thing standing between your partner and eviction by your heirs.

Hospital visits and medical decisions

Two different things get confused here: being allowed in the room, and being allowed to decide. Federal law handles the first. Only your paperwork handles the second.

Since a 2011 federal rule, any hospital that takes Medicare or Medicaid (nearly all of them) must let you designate who may visit you, and must give that person equal visitation rights regardless of whether they are legally or biologically related to you. That explicitly includes a domestic partner, including a same-sex partner. The rule is in the Federal Register (CMS Conditions of Participation, effective January 18, 2011). So your partner can be at your bedside.

On information sharing, HHS guidance under HIPAA says a provider may share your health information with a partner you have involved in your care, as long as you are present and do not object, or, if you are incapacitated, when the provider judges it to be in your best interest. Helpful, but it is permissive and discretionary.

Kids, pets, and digital accounts

Minor children

If you have kids and you are not married, do not assume your partner is automatically their legal parent. They may not be. Name a guardian in your will (only a will can do this), and confirm legal parentage through whatever your state requires, such as acknowledging paternity or completing a second-parent adoption. A court has the final say on guardianship, and a surviving non-biological partner is not guaranteed custody. Lock down parentage now so it is never in question.

Pets

The law treats pets as property, so they pass like any other asset. Name a caretaker for a shared pet, and if you want to be sure the animal is funded, set up a pet trust that leaves money for its care. It is a small clause that prevents a real fight.

Digital accounts

Email, photos, cloud storage, and crypto can be locked away from your partner without explicit permission. Roughly 47 states plus DC have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which lets you grant a partner or executor lawful access. One wrinkle worth knowing: to give access to the contents of your messages, many providers require your explicit consent, often through their own online tool. Use those tools, and grant access in your will or trust, or your partner could be shut out of your accounts entirely.

State traps: common-law marriage and inheritance tax

Common-law marriage, the accurate list

A lot of pages publish the same stale list here, so here is the careful version. A small number of states still let a couple form a new common-law marriage: Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, and the District of Columbia. New Hampshire recognizes one only for inheritance, and only after a partner dies. Utah is its own animal: it recognizes an unsolemnized marriage, but only if a court or administrative order says so (Utah Code §81-2-408, formerly §30-1-4.5), so it is not common-law marriage in the everyday sense.

Several states ended common-law marriage but still honor ones formed before a cutoff date. South Carolina abolished it going forward in Stone v. Thompson (2019), grandfathering only marriages established before July 24, 2019. Alabama stopped recognizing new ones on or after January 1, 2017, and Pennsylvania stopped recognizing ones entered after January 1, 2005. If you are counting on common-law status, get it confirmed. Living together for seven years does not create it anywhere, and remaining unmarried by choice means you should plan as an unmarried couple, full stop.

State estate and inheritance tax

Your partner can owe $0 in federal estate tax (you are far below $15M) and still get taxed by the state. Twelve states plus DC levy their own estate tax, often kicking in at a much lower threshold than the federal one. Worse for unmarried couples, a few states have an inheritance tax where the rate depends on how related you are to the deceased, and a partner counts as an unrelated heir at the top bracket.

The printable checklist

Print this, work down it, and check the boxes. Bring it to an attorney in your state to put the documents in place. Most couples can knock out the whole list in a few focused sessions.