More couples than ever are building deep, lasting relationships without ever walking down the aisle. Whether by choice, circumstance, or principle, many Americans are opting out of marriage—but not out of commitment. Data indicate that cultural norms regarding marriage in the United States have undergone significant shifts over the past several decades. Consider the following:
- The number of unmarried partners in the United States more than tripled between 1996 and 2018, from 6 million to 19 million.[1]
- Among adults aged 30 and younger, 12 percent were living with an unmarried partner in 2019, compared with 5 percent in 1995.[2]
- The percentage of US households headed by married couples as of 2024 (47 percent) was at its second-lowest point since the US Census Bureau began tracking marital status in 1940.[3]
However, the law has not kept pace with modern relationships. It is important for unmarried couples to have an estate plan tailored to your individual situation. Without an estate plan, your partner generally has no legal authority to make decisions for you if you become injured or incapacitated (unable to manage your own affairs) or to inherit from you when you pass away. Dying without an estate plan—known in Texas as dying intestate—means state law determines who receives your assets. These laws rarely account for long-term, unmarried partners, making it essential to create a will or trust to ensure that your wishes are honored and your partner is protected.
Common Law Marriage
Only eight states in the US allow for something known as common law marriage.[4] In a common law marriage, the couple has a legally binding marriage, but has not gone through the formal rituals of a wedding ceremony or buying a marriage license.
Texas is one of these handful of states which recognize common law marriage as having the same legal validity of a formal marriage. However, it is important to remember that not all unmarried couples are in a common law marriage, so it is best to be prepared for some questions to determine if you are unmarried or if your relationship is a common law marriage.
The difference may seem negligible to you, but legally the distinction between married/unmarried/common law married can sometimes be quite sharp. Thus it is important you answer any questions, even the invasive-sounding ones, from your attorney, as they are trying to understand your relationship and how the law can work best for you both.
Revocable Living Trusts
A revocable living trust allows you to set clear instructions for how your money and property are to be managed and distributed. Revocable living trusts can work on your behalf while you are alive and well, if you become incapacitated and unable to manage your own affairs, and after your death.
While you are alive and well, you are typically the trustee and can use the money and property in your trust just as you normally would use your money and property. If you become incapacitated, your chosen successor (backup) trustee can step in to manage your affairs seamlessly, without court involvement. After your death, the trust directs how your assets are distributed to or managed for your beneficiaries, often avoiding probate and keeping matters private.
Though trusts often cost more to create than the common alternative—a last will and testament—the benefits they provide cannot be easily or reliably replicated with other planning tools. Overall, a trust is often the stronger choice and can serve as the cornerstone of almost any comprehensive estate plan, especially for couples who have not formalized their relationships with a legal marriage.
Last Wills and Testaments
A last will and testament (commonly called a will) is an estate planning tool that allows you to direct what will happen to your accounts and property after your death. It also allows you to nominate someone—often called an Independent Executor—to wind down your affairs when you die and ensure your wishes are carried out. While a will can accomplish many of the same goals as a revocable living trust, it does not provide a means to manage your affairs during your lifetime or in the event of potential incapacitation. It also has to go through the court-supervised probate process, which can make things more time-consuming, public, and expensive for your loved ones.
A special type of will, known as a pour-over will, is a straightforward yet crucial component of any trust-based estate plan. Think of it as a safety net for anything you may have forgotten to transfer into your trust during your lifetime. If you still own something—such as a bank account or piece of real estate—in your sole name and without a beneficiary when you pass away, the pour-over will ensures that it “pours over” into your trust after your death. While your loved ones may still need to go through probate to transfer those things to the trust, this type of will ensures that everything ultimately ends up in the right place and is handled according to your trust’s instructions.
Beneficiary Designations
Most retirement accounts and insurance policies (and many other types of accounts, too) allow you to designate a beneficiary, which is the person who will automatically receive what is in the account when you die. It is essential to periodically review the beneficiaries listed on your accounts to ensure they are up-to-date. Imagine naming your ex-spouse as the beneficiary of your 401(k) before your divorce and then forgetting to update it once the divorce was finalized. Unfortunately, that oversight could mean your ex is still legally entitled to receive the account when you pass away, unintentionally cutting out your current partner or other loved ones you intended to provide for.
Depending on your trust’s design, your personal circumstances, and your specific goals, you may choose to name one or more trusts as the beneficiary instead of, or in addition to, individual people. This approach can provide more control over how and when these accounts are distributed, especially if you want to protect beneficiaries from taxes, creditors, or their own spending habits. However, due to the many intricacies of the tax code, it is always best to discuss any changes with beneficiary designation with your experienced estate planning attorney.
Powers of Attorney, Advance Directives, and Similar Legal Documents
Planning for what happens after death is only one part of a comprehensive estate plan. Incapacity—when you are alive but unable to make decisions for yourself—is another situation where legal planning can help you stay in control, ensure your wishes are followed, and reduce the likelihood of family conflict. Without documents that address incapacity, your loved ones may have to go to court to have someone appointed to manage your medical and financial affairs (often referred to as a guardianship in Texas). When that happens, the judge looks to state default rules about who gets priority—and unmarried partners are often left out entirely. To avoid this situation, you should consider creating or updating the following estate planning documents:
- Medical power of attorney: allows you to name someone (such as your partner) to make healthcare decisions for you if you cannot communicate them yourself
- Financial power of attorney: allows you to name someone you trust (again, possibly your partner) to handle your financial and legal matters if you are unable to do so
- Advance directive: where you can express your wishes regarding end-of-life care, including what you would like to happen if you are in a persistent vegetative state or end-stage condition
- Health Insurance Portability and Accountability Act (HIPAA) authorization: gives the people you name permission to access your protected health information so they can stay informed about your medical condition
Securing Your Shared Future
Whether you have been together for decades and are nearing retirement or are just beginning to build your life as a couple, it is important to take the time now to create or update your estate plan and ensure that your wishes are honored and that your partner is protected—no matter what the law says about your relationship status. Nielsen Law PLLC Provides family-focused estate and business planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information, and to learn about our firm, please contact us to learn how.
[1] Mike Schneider, Unmarried partners in US have tripled in 2 decades, AP News (Sept. 24, 2019), https://apnews.com/article/848605aad88a418c9b606c0f745ae33f.
[2] Juliana Menasce Horowitz et al., The landscape of marriage and cohabitation in the U.S., Pew Rsch. Ctr. (Nov. 6, 2019), https://www.pewresearch.org/social-trends/2019/11/06/the-landscape-of-marriage-and-cohabitation-in-the-u-s/.
[3] How has marriage in the US changed over time?, USAFacts (Feb. 11, 2025), https://usafacts.org/articles/state-relationships-marriages-and-living-alone-us/.
[4] Common Law Marriage by State, National Conference of State Legislatures (March 11, 2020), https://www.ncsl.org/human-services/common-law-marriage-by-state.
