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How can unmarried couples protect their assets in the event of separation? P.2

Last time, we began speaking about cohabitation agreements in Illinois, and how these documents can help unmarried couples protect their assets in the event of separation and death. As we noted, crafting an enforceable cohabitation agreement in Illinois can be tricky and it is important to work with an experienced attorney to ensure it is valid and enforceable.

Two particularly important issues unmarried couples can address either within or apart from a cohabitation agreement are the titling of real property and the disposition of property at death. The way an unmarried couple holds title to real property can certainly have an impact on how the property may be dealt with in the event of separation and death.

If property is held as tenants in common, property interests may be unequal, but in joint tenancy, property interests are equal. In either case, each party holds separate ownership interests which can be sold, transferred, conveyed or encumbered without the consent of the other party. Property may also be held, of course, by one partner, though many unmarried couples want to own property together. The way property is titled can affect unmarried couples both upon separation and in the event of death.

With tenancy in common, each party’s share of the property passes at death by his or her will or under Illinois’ intestacy statute. This is not the case with joint tenancy, in which the death of an owner results in the transfer of that ownership interests to the remaining owners. In other words, couples who choose to title their property as tenants in common need estate planning documents to ensure their property goes to their partner at death rather than next of kin.

In our next post, we’ll continue looking at this topic, particularly with respect to estate planning for unmarried couples and how an experienced family law attorney can provide guidance and advocacy.

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