Marriage carries a long list of automatic legal protections in New York, and most married couples never have to think about a single one of them. When a couple lives together for years without marrying, sharing a home, raising children and paying one another's bills, none of those protections attach. The law looks at the legal relationship rather than the length or the depth of it, and in the eyes of the Surrogate's Court an unmarried partner is a stranger to the estate. That is the starting point I explain to every unmarried couple who comes to my office.
New York does not recognize common-law marriage
New York abolished common-law marriage in 1933. Living together for ten years, twenty years or forty years does not create a marriage here, and neither does introducing one another as husband and wife or appearing together on a lease. The one narrow exception is a common-law marriage validly created in a state that still recognizes them, which New York will honor. For the couples I meet in Queens and Brooklyn that exception almost never applies.
The intestacy statute leaves a surviving partner with nothing
When someone dies without a will, their property passes to their distributees in the order set out in EPTL 4-1.1. Under New York's statute on intestate distribution, where there is no spouse the estate passes to children, then parents, then siblings, then nieces and nephews, then grandparents and their issue. An unmarried partner does not appear anywhere on that list. If a person dies without a will and without children, his estate goes to his parents, and if they have died, to his brothers and sisters, even where his partner of twenty-five years is still living in the apartment they furnished together. Where the home was in his name alone, those relatives become the legal owners.
A partner has no priority to be appointed
The difficulty is not only who inherits, but who controls the process. SCPA 1001 sets the order of priority for letters of administration, and as I have discussed in a prior article on administration proceedings, that priority runs to the surviving spouse first, then to children, grandchildren, parents and siblings. A partner is not a distributee and can generally seek appointment only as a creditor or with the written consent of the family, so a sibling who has not visited in a decade may end up selling the house and deciding what becomes of personal belongings.
The spousal protections simply do not apply
A surviving spouse who is left out of a will may exercise the right of election under EPTL 5-1.1-A and claim the greater of fifty thousand dollars or one-third of the net estate. A spouse is also entitled to the family exemption under EPTL 5-3.1, which sets aside the automobile, the household furniture and a cash allowance before creditors are paid. An unmarried partner has neither. There is no minimum share, no set-aside and no claim against the estate beyond money actually loaned or owed.
How the property is titled carries more weight
Married couples in New York may hold real property as tenants by the entirety, which passes automatically to the survivor. That form of ownership is not available to unmarried couples, and when two unmarried people are named on a deed without further language, EPTL 6-2.2 presumes they hold as tenants in common, so half the house falls into the deceased partner's estate. Survivorship has to be stated expressly on the deed. I review the deed itself for every unmarried couple I meet, because a single missing phrase decides whether the survivor keeps the home or ends up owning it with in-laws.
The tax picture is less forgiving
Transfers between spouses pass free of estate tax under the unlimited marital deduction. Unmarried partners have no such deduction, so everything left to a partner counts against the New York basic exclusion amount, which is $7,350,000 for deaths in 2026, and an estate exceeding that exclusion by more than five percent loses it entirely and is taxed from the first dollar. Lifetime giving differs as well. A gift to a spouse is unlimited, while a gift to a partner above the $19,000 annual exclusion is a reportable taxable gift, and gifts made within three years of death are added back into the New York estate.
What I recommend
For unmarried couples I recommend a will at minimum, and in most cases a revocable living trust, which keeps the transfer out of Surrogate's Court and away from relatives inclined to object. Beneficiary designations on retirement accounts and life insurance should be reviewed and named directly, and the deed should be corrected while both partners are living. A health care proxy and a durable power of attorney matter just as much, because without them a partner has no automatic authority to make medical or financial decisions during a hospitalization. Couples in New York City should also consider registering as domestic partners. Once proper planning is in place, the surviving partner is protected in the same practical ways a spouse would be.
If you and your partner are unmarried and have an estate plan which needs to be put in place, contact us today at (347) 766-2685 for a free phone consultation.
Contributed by Roman Aminov, Esq, a Queens estate attorney in New York City.
