What Happens to Your Unmarried Partner If You Die Without a Plan?
Last year, a woman sat across from me in tears. Her partner of 14 years — the man she shared a home with, raised children with, built a life with — had died suddenly from a heart attack at 52. They had never married. They had no estate plan. And under California law, she was legally a stranger.
Here is exactly what California law says happens when an unmarried, unregistered partner dies without a plan:
- Your partner inherits absolutely NOTHING. Under California Probate Code §6401–6402, intestate succession passes your assets to your spouse or registered domestic partner first, then to children, then to parents, then to siblings, then to more distant blood relatives. An unmarried partner is not on the list — at all. Not even last.
- Your partner could be forced out of your shared home. If the house was in your name alone, it passes to your blood relatives. Your partner — the person who helped pay the mortgage for a decade — has no legal right to stay. Your siblings or parents can sell the house out from under them.
- Your partner has ZERO authority over medical decisions. If you are in a coma, on life support, or incapacitated, the hospital turns to your legal next of kin: your parents, your adult children, your siblings. Your partner of 20 years can be barred from your hospital room — and from making the medical decisions you would want them to make.
- Your partner cannot access your bank accounts. Your checking account, savings, brokerage accounts — all frozen at death. Your partner cannot pay bills, cover the mortgage, or even access the money needed for funeral expenses.
- Your blood relatives control your funeral and burial. Under California Health and Safety Code §7100, the right to control disposition of remains goes to the surviving spouse or domestic partner, then adult children, then parents, then siblings. An unmarried partner has no say.
Every single one of these outcomes is preventable. A living trust, healthcare directive, and power of attorney take a few hours to put in place and cost a few hundred dollars. Without them, the person you love most in the world has no legal rights at all.
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Why Estate Planning Is More Urgent for Unmarried Couples
I tell every unmarried couple the same thing in my first consultation: married couples can afford to procrastinate. You cannot.
When a married person dies without an estate plan, California's intestate succession laws provide a safety net. The surviving spouse inherits all community property and a share of separate property. The spouse has automatic authority over medical decisions. The spouse can access joint bank accounts. The system is designed to protect married spouses even when they fail to plan.
Unmarried couples get none of this. Zero. California does not recognize common-law marriage — not after 5 years, not after 20 years, not after 50 years of living together. It does not matter that you share a home, share finances, share children, or share a life. Without legal documentation, you are strangers in the eyes of the law.
In my 25 years of practice, the most devastating cases I have handled are not the complex multi-million-dollar estates. They are the unmarried couples who assumed they were protected and discovered — at the worst possible moment — that they were not.
The Numbers Are Staggering
According to U.S. Census data, approximately 8.3 million unmarried couples live together in the United States. In California alone, millions of people cohabit without marriage. The majority have no estate plan whatsoever.
If you are among them, this article is the most important thing you will read this year. Every day without a plan is a day your partner is completely unprotected.
What Happens If You Die Without a Plan in California
Let me walk through the specific California Probate Code sections so you understand exactly why this matters. This is not hypothetical — this is what I see happen in my practice regularly.
California Intestate Succession: Your Partner Is Invisible
Under California Probate Code §6401–6402, when someone dies without a will or trust, their assets pass in a strict order of priority:
- Surviving spouse or registered domestic partner — receives all community property and a portion of separate property
- Children — if no surviving spouse, everything goes to children equally
- Parents — if no spouse and no children
- Siblings — if no spouse, children, or parents
- More distant relatives — grandparents, aunts, uncles, cousins
- The State of California — if absolutely no relatives can be found
Notice who is missing from that list? Your unmarried partner. They are not sixth in line. They are not last. They are simply not on the list at all. California will literally give your estate to the state government before it gives a single dollar to the person you shared your bed with for the last 15 years.
Real Scenario: What I See in Practice
David and Maria lived together for 12 years in a home David bought before they met. David died without a will or trust. Under Probate Code §6402, David's entire estate — including the $850,000 house — passed to his elderly mother. His mother, who never approved of Maria, gave her 30 days to move out. Maria had no legal recourse. She had paid half the mortgage for a decade but had no ownership interest and no inheritance rights.
David loved Maria. He intended for her to have the house. He just never put it in writing. And in California, intentions mean nothing without legal documentation.
Domestic Partnership vs Marriage: Legal Differences in California
Before we discuss solutions, you need to understand an important legal distinction. In California, there are three categories of couples, and the legal protections are dramatically different for each.
| Legal Status | Inheritance Rights | Medical Decisions | Property Rights | Tax Benefits |
|---|---|---|---|---|
| Married | Full intestate inheritance. Surviving spouse gets all community property + share of separate property. | Automatic authority under Probate Code §4711 | Community property presumption. Equal ownership of assets acquired during marriage. | Federal & state marital deduction. Unlimited tax-free transfers between spouses. |
| Registered Domestic Partner | Same state-level inheritance rights as married couples under Family Code §297.5. | Same authority as a spouse at state level | Community property applies. Same as married couples under California law. | California state tax benefits only. NO federal marital deduction. |
| Unmarried / Unregistered | ZERO. Not in the intestate succession order at all. | NONE. Hospital defers to blood family. | NONE. No community property. No automatic ownership rights. | NONE. No marital deduction. Gift tax applies to large transfers. |
If you are living with your partner but have not married or registered as domestic partners, you are in the bottom row of that table. You have the fewest legal protections of any couple structure in California. Married couples have an extensive safety net built into the law. You have nothing unless you build it yourself.
Should You Register as Domestic Partners?
If marriage is not something you want, registering as domestic partners with the California Secretary of State gives you nearly all the same state-level protections as marriage — intestate inheritance, community property, medical decision-making authority, and more. The filing fee is approximately $50.
However, registered domestic partnerships are NOT recognized at the federal level for tax purposes. You will not get the federal estate tax marital deduction, you cannot file joint federal tax returns, and Social Security survivor benefits may not apply. For many couples, registration is a helpful step — but it is not a complete substitute for a comprehensive estate plan.
Living Trust for Unmarried Couples: Your Best Protection
A living trust is the single most important document for an unmarried couple. It does what California law refuses to do: it treats your partner as someone who matters.
Why a Trust Beats a Will for Unmarried Couples
A will has to go through probate — a public court process that takes 8–18 months in California and costs 4–8% of the estate value. During probate, your partner waits. They cannot access the home, the bank accounts, or the assets you left them. And because probate is public, any disgruntled family member can see your will and potentially contest it.
A living trust avoids probate entirely. When you die, your successor trustee distributes assets according to your instructions — privately, quickly, and without court involvement. Your partner can access funds within days, not months. And because trusts are private documents, family members who disagree with your choices may never even know the details.
Joint Trust vs Separate Trusts: Which Is Right for You?
This is one of the most common questions I get from unmarried couples. The answer depends on your specific situation.
Separate Trusts: Best for Most Unmarried Couples
Each partner creates their own individual trust. Each trust holds that person's separate assets and names the other partner as beneficiary.
Advantages: Clean separation of assets. No complications if the relationship ends. Each person has full control over their own trust. No ambiguity about who owns what.
Best for: Couples who are not registered domestic partners, couples with significant separate assets, couples who want maximum flexibility and independence.
Joint Trust: Consider for Registered Domestic Partners
Both partners create a single trust together, similar to what married couples typically use. The joint trust holds community property and can also hold each partner's separate property.
Advantages: Simpler to administer. Works well when partners share most assets. Mirrors the community property framework that California applies to registered domestic partners.
Best for: Registered domestic partners who share most of their assets and want a streamlined estate plan. Not recommended for unregistered couples because asset ownership can become ambiguous.
Title and Ownership: How You Hold Property Matters
This is the area where I see unmarried couples make the most expensive mistakes. How you hold title to property — especially your home — determines what happens to it when one partner dies. Get this wrong and your partner could lose the house.
| How Title Is Held | What Happens at Death | Best For |
|---|---|---|
| One Partner's Name Only | Property passes through that partner's estate. If no trust or will, goes to blood relatives. Surviving partner gets nothing. | AVOID this for shared homes. This is the most dangerous setup for unmarried couples. |
| Tenants in Common | Each partner owns a defined share (usually 50/50). At death, the deceased partner's share passes through their estate — NOT automatically to the survivor. | Only if combined with a trust or will leaving the share to the partner. Without an estate plan, the deceased partner's share goes to blood relatives. |
| Joint Tenancy with Right of Survivorship | At death, the deceased partner's share passes automatically to the surviving joint tenant. No probate. No court involvement. | Good automatic protection. Simple. But may create gift tax issues if one partner contributed more to the purchase. |
| Community Property (Registered DPs Only) | Both partners own equal shares of property acquired during the partnership. Surviving partner gets stepped-up basis on both halves. | Only available to registered domestic partners and married couples. Best tax treatment. Learn about community property rules. |
| In a Living Trust | Property passes according to trust instructions. Partner can be named as beneficiary. Avoids probate. Private. | Best overall protection when combined with proper title transfer into the trust. |
The Most Common Mistake I See
One partner buys a house before the relationship begins. Years later, both partners are living in it, both contributing to the mortgage, but the title is still in only one name. When that partner dies, the house goes to their blood family under intestate succession.
If you are in this situation, you have options: add your partner to the title as joint tenants, transfer the property into your trust with your partner as beneficiary, or execute a transfer-on-death deed. The worst option is doing nothing.
Healthcare Decisions: Your Partner Has No Authority Without Documents
This is the issue that blindsides unmarried couples more than any other. It is not about money or property — it is about being allowed to make medical decisions for the person you love when they cannot speak for themselves.
Under California Probate Code §4711, when you are incapacitated and have not designated a healthcare agent, the law assigns decision-making authority in this order:
- Spouse or registered domestic partner
- Adult children
- Parents
- Adult siblings
- Adult grandchildren
- Close friends (only as a last resort, and rarely in practice)
Your unmarried partner is not on this list. If you are in a car accident and cannot communicate, the hospital will call your parents or your siblings — not the person who sleeps next to you every night.
I had a client whose partner was in a severe motorcycle accident. The hospital would not let him into the ICU because he was not "family." His partner's estranged mother — a woman who had not spoken to her son in six years — was given full decision-making authority. She made medical decisions that my client's partner would never have wanted. And there was nothing he could do about it.
The Solution: An Advance Healthcare Directive
An advance healthcare directive is a legal document that does two things:
- Names your partner as your healthcare agent. This gives them legal authority to make medical decisions on your behalf, overriding the default statutory priority list. Your partner — not your estranged parent or distant sibling — makes the calls.
- Documents your wishes about end-of-life care. Do you want to be kept on life support? Do you want aggressive treatment or comfort care? Do you want to donate organs? Your directive puts these decisions in writing so your partner does not have to guess — and so no family member can override your wishes.
Every adult in California should have a healthcare directive. For unmarried couples, it is absolutely non-negotiable.
Financial Power of Attorney: Let Your Partner Manage Your Affairs
If you are incapacitated — in a coma, recovering from surgery, dealing with a severe illness — someone needs to manage your finances. Pay the mortgage. Deposit your disability checks. Handle insurance claims. File tax returns.
Without a durable financial power of attorney, your partner cannot do any of this. They cannot access your bank accounts, pay your bills, manage your investments, or handle your business affairs. Even if both your names are on the checking account, your partner may not be able to manage your separate accounts, your retirement funds, or your rental property income.
A durable power of attorney names your partner as your agent for financial matters. It survives your incapacity (that is what "durable" means) and gives your partner the legal authority to act on your behalf.
Power of Attorney vs Trust: What Is the Difference?
A living trust controls what happens to your assets when you die. It is a death-planning document (and an incapacity-planning document for assets held in the trust).
A power of attorney gives your partner authority to manage your finances while you are alive but incapacitated. It is a living document that expires at your death. You need both. The trust handles death. The power of attorney handles incapacity.
Beneficiary Designations: The Easiest Step Most Couples Skip
Here is something that surprises most people: some of your most valuable assets do not pass through your will or trust at all. They pass by beneficiary designation — and if you have not updated yours, your partner may be completely shut out.
Assets That Pass by Beneficiary Designation
- Retirement accounts — 401(k), IRA, 403(b), pension plans
- Life insurance policies — the death benefit goes to whoever is named, regardless of your will or trust
- Bank accounts with payable-on-death (POD) designations
- Brokerage accounts with transfer-on-death (TOD) designations
- Health savings accounts (HSAs)
These designations override your trust, your will, and everything else. If your 401(k) beneficiary is still your ex from 2014, your ex gets the money — even if your trust says everything goes to your current partner.
The fix is simple: Log into every account, update the beneficiary to your partner (or your trust), and confirm it in writing. This takes an afternoon and costs nothing. Yet I see unmarried couples skip this step constantly, leaving hundreds of thousands of dollars vulnerable to going to the wrong person.
The Cost of Not Planning vs. The Cost of Planning
Protect your partner now. Without a plan, they inherit nothing, make no medical decisions, and cannot access a single bank account.
Protecting Your Shared Home
For most unmarried couples, the home is the biggest asset and the biggest vulnerability. Losing the home on top of losing a partner is devastating — and it happens far more often than people realize.
If the Home Is in One Partner's Name
This is the highest-risk scenario. If the title-holding partner dies without a trust or will, the home passes to their blood relatives through intestate succession. The surviving partner — the person who has been living in that home, paying the mortgage, maintaining the property — has no legal right to stay.
Options to fix this:
- Add your partner to the title as joint tenants. This gives them automatic survivorship rights. However, it may trigger a reassessment for property tax purposes under Proposition 19, and it constitutes a gift for federal tax purposes if your partner did not contribute to the purchase price.
- Transfer the home into your living trust with your partner named as beneficiary. This avoids probate, keeps the transfer private, and does not trigger property tax reassessment because you are still the beneficial owner.
- Execute a transfer-on-death (TOD) deed. California allows you to name a beneficiary for your home that takes effect at death. Simple, free to prepare, but has limitations and can be revoked or contested.
If You Both Own the Home
How you hold title determines everything. Joint tenancy gives automatic survivorship rights. Tenants in common does not — each partner's share passes through their estate, and without a plan, it goes to blood relatives. Check your deed. If it says "tenants in common" and you do not have a trust or will, your partner's half of the home could go to their family while you still live there.
Estate Planning If You Have Children Together But Are Not Married
Having children together adds urgency and complexity. There are issues that only arise for unmarried parents, and ignoring them can create serious problems for both your partner and your children.
Custody Is Not Automatic for Unmarried Fathers
Under California law, when a married couple has a child, the husband is automatically presumed to be the legal father. For unmarried couples, paternity must be established — either by signing a Voluntary Declaration of Paternity at the hospital or through a court order. Without established paternity, the father may have no legal custody rights.
Guardianship Planning
If both parents die, someone needs to raise your children. Naming a guardian in your will is critical. For unmarried couples, it is even more important that both parents name the same guardian in their respective wills. If you have not established paternity or if only one parent has legal custody, the guardian nomination from the non-custodial parent may carry less weight with the court.
Trust Provisions for Children
Your living trust should include provisions for your minor children: who manages their money (the trustee), what the money can be used for (education, health, maintenance, support), and when they receive their inheritance (age-based distributions). If you and your partner both die, the trust ensures your children are financially supported without requiring court-supervised guardianship of the estate.
Unmarried Parents: Action Items
- Establish paternity legally if you have not already
- Both parents should name the same guardian in their wills
- Create trust provisions for minor children with age-based distributions
- Name each other as primary beneficiaries, children as contingent beneficiaries
- Consider life insurance to provide for children if both parents die
Tax Implications for Unmarried Couples
The tax code was written for married couples. If you are unmarried, you face several tax disadvantages that married couples avoid entirely.
No Federal Estate Tax Marital Deduction
Under IRC §2056, married spouses can transfer unlimited assets to each other at death with zero estate tax. This is the unlimited marital deduction, and it is one of the most powerful tax benefits in the entire Internal Revenue Code.
Unmarried couples do not get this benefit. If your estate exceeds the federal exemption (approximately $7 million per person in 2026, down from $12.92 million in 2024 due to the sunset of the Tax Cuts and Jobs Act provisions), the excess is taxed at up to 40%. Married couples can effectively double their exemption by using portability. Unmarried couples cannot.
No Full Stepped-Up Basis on Community Property
When a married person dies in a community property state like California, BOTH halves of the community property receive a stepped-up basis to fair market value. This can save the surviving spouse hundreds of thousands of dollars in capital gains taxes.
Unmarried couples do not get this double step-up. Only the deceased partner's share receives a stepped-up basis. If you bought a home together for $400,000 and it is now worth $1.2 million, a surviving spouse would get a full stepped-up basis to $1.2 million. A surviving unmarried partner only gets a step-up on the deceased partner's half — their own half retains the original basis, creating a potential $400,000 capital gain if they sell.
Gift Tax Issues
Married spouses can give each other unlimited gifts with no gift tax consequences. Unmarried couples cannot. If you add your partner's name to the deed of a $1 million home, you have just made a $500,000 taxable gift. The annual gift tax exclusion ($18,000 per person in 2026) and the lifetime exemption can offset this, but it requires careful planning and potentially filing gift tax returns.
Tax Planning Is Essential for Higher-Net-Worth Unmarried Couples
If your combined estate exceeds $5 million, you should work with both an estate planning attorney and a tax professional. The lack of a marital deduction, the reduced stepped-up basis, and potential gift tax issues can cost your surviving partner hundreds of thousands of dollars in unnecessary taxes. Proper planning — including irrevocable life insurance trusts, strategic gifting, and trust structuring — can minimize these costs significantly.
Registered Domestic Partners: What Is Different
If you and your partner have registered as domestic partners with the California Secretary of State, your legal situation is significantly better than unregistered couples — but not identical to married couples.
State-Level Rights (Nearly Equal to Marriage)
Under California Family Code §297.5, registered domestic partners have the same rights, protections, and obligations as married spouses under California law. This includes:
- Intestate inheritance — your partner inherits the same way a spouse would
- Community property — assets acquired during the partnership are community property
- Healthcare decision-making — your partner has automatic authority
- Probate homestead protection — your partner cannot be forced out of the family home
- Right to control funeral arrangements
Federal-Level Gaps (The Important Difference)
Federal law does NOT treat registered domestic partners the same as married spouses. This means:
- No federal estate tax marital deduction — you cannot transfer unlimited assets tax-free
- No joint federal tax returns — you file as single individuals
- No Social Security survivor benefits — your partner may not receive your Social Security
- No portability of federal estate tax exemption
- ERISA-governed retirement plans may not recognize your partner as a spouse for beneficiary purposes
Even with registration, you still need a comprehensive estate plan. The state-level protections are valuable, but they do not cover everything — and they do nothing at the federal level.
Checklist: Estate Planning Steps for Unmarried Couples
Here is the complete list of documents and actions every unmarried couple in California should complete. I have put them in order of priority.
- Living Trust — Name your partner as primary beneficiary. Separate trusts for most unmarried couples, joint trust for registered domestic partners. This is the foundation of your entire plan.
- Pour-Over Will — Catches any assets not transferred into your trust. Names guardians for minor children. Works alongside your trust.
- Advance Healthcare Directive — Names your partner as your healthcare agent. Documents your end-of-life wishes. Without this, your partner has zero medical decision-making authority. Learn more about healthcare directives.
- Durable Financial Power of Attorney — Gives your partner authority to manage your finances if you are incapacitated. Pay bills, manage investments, handle insurance claims.
- Beneficiary Designation Updates — Review and update every retirement account, life insurance policy, bank account, and brokerage account. Name your partner (or your trust) as beneficiary.
- Review Title on All Property — How is your home titled? Your cars? Your investment properties? Make sure the title reflects your intentions. Joint tenancy, trust ownership, or TOD deeds where appropriate.
- Life Insurance Review — Do you have adequate coverage? Is your partner named as beneficiary? Life insurance proceeds pass outside of probate and are income-tax-free to the recipient.
- Consider Registering as Domestic Partners — If marriage is not for you, domestic partnership registration gives you state-level protections for about $50. It is not a substitute for an estate plan, but it provides an important safety net.
- Cohabitation Agreement — Consider a written agreement that defines property ownership, financial responsibilities, and what happens if the relationship ends. Think of it as a prenup for unmarried couples.
- Document Funeral and Burial Wishes — Without documentation, your blood family controls these decisions. Put your wishes in writing and give your partner a copy.
How Long Does This Take?
The entire estate plan — trust, will, healthcare directive, power of attorney — can be completed in a matter of days. Our online process takes about 30 minutes to provide your information, and attorney Rozsa Gyene reviews every document personally.
Beneficiary designation updates take an afternoon. Title review takes a phone call to your title company or a quick check of your deed. The total time investment is measured in hours, not weeks. The cost of inaction — your partner losing everything — is incalculable.
Frequently Asked Questions
Does my unmarried partner automatically inherit anything if I die without a will in California?
No. Under California Probate Code §6401–6402, intestate succession only passes assets to spouses, registered domestic partners, children, parents, siblings, and other blood relatives. An unmarried, unregistered partner receives absolutely nothing — regardless of how long you lived together, whether you own a home together, or whether you have children together. This is why a living trust is essential for every unmarried couple.
What is the difference between a registered domestic partnership and just living together in California?
A registered domestic partnership filed with the California Secretary of State gives you nearly all the same state-level rights as marriage, including intestate inheritance, community property, and healthcare decision-making authority. Simply living together — even for decades — gives you zero automatic legal rights in California. There is no common-law marriage in California. The registration costs about $50 and can be done online.
Should unmarried couples create a joint living trust or separate trusts?
Most estate planning attorneys, myself included, recommend separate trusts for unmarried couples unless they are registered domestic partners. Separate trusts keep each partner's assets clearly defined, avoid complications if the relationship ends, and give each person independent control. Registered domestic partners may benefit from a joint trust similar to married couples, especially if they share community property.
Can my partner make medical decisions for me if we are not married?
Not without an advance healthcare directive. Without this document, California Probate Code §4711 gives decision-making priority to a spouse or registered domestic partner, then adult children, then parents, then siblings. An unmarried partner has no legal standing — even if you have lived together for 20 years. I have seen partners barred from hospital rooms and excluded from life-or-death decisions. A healthcare directive prevents this entirely.
Do unmarried couples get the estate tax marital deduction?
No. The unlimited marital deduction under IRC §2056 only applies to legally married spouses. Unmarried partners — including registered domestic partners at the federal level — cannot transfer unlimited assets tax-free to each other at death. For 2026, the federal estate tax exemption is approximately $7 million per person, so this primarily affects higher-net-worth couples. If your combined estate exceeds this threshold, work with a tax professional to minimize the impact.
How do I protect our shared home if we are not married?
You have several options: hold title as joint tenants with right of survivorship (the home passes automatically to the survivor), use a transfer-on-death deed, or place the home in a living trust with your partner as beneficiary. The worst option is tenants in common with no estate plan — your share would pass through intestate succession to blood relatives, potentially forcing your partner out of the home they have lived in for years.
What estate planning documents do unmarried couples need in California?
At minimum, each partner needs: (1) a living trust naming the other partner as beneficiary, (2) a pour-over will, (3) an advance healthcare directive naming the partner as agent, (4) a durable financial power of attorney, and (5) updated beneficiary designations on all retirement accounts, life insurance, and bank accounts. Without these documents, your partner has zero legal rights to your assets, medical decisions, or financial affairs. You should also review and update your trust whenever your circumstances change.
Key Takeaways
- Unmarried partners inherit NOTHING under California intestate succession. Probate Code §6401–6402 only covers spouses, registered domestic partners, and blood relatives. Without a plan, your partner is legally a stranger.
- California does not recognize common-law marriage. Living together for any length of time gives you zero automatic legal rights. Only a legal marriage or registered domestic partnership creates statutory protections.
- A living trust is your most important document. It names your partner as beneficiary, avoids probate, and ensures private, fast distribution of your assets. Most unmarried couples should have separate trusts.
- A healthcare directive is non-negotiable. Without it, your partner cannot make medical decisions for you. The hospital will defer to your blood family, even if you have not spoken to them in years.
- Update all beneficiary designations. Retirement accounts, life insurance, and bank accounts pass by beneficiary designation, not through your trust or will. If the wrong person is named, they get the money.
- How you hold title to your home matters. Joint tenancy gives automatic survivorship rights. Sole ownership with no plan means your partner could be forced out of the home.
- Registered domestic partnership provides state-level protections but does not give you federal benefits like the estate tax marital deduction or Social Security survivor benefits.
- If you have children together, establish paternity and name guardians. Both parents should name the same guardian in their wills and create trust provisions for minor children.
Protect Your Partner Today
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Get started for $400 with attorney review included →About: Rozsa Gyene, California Estate Planning Attorney, State Bar #208356. 25+ years experience helping unmarried couples, domestic partners, and non-traditional families create comprehensive estate plans that protect the people they love.