Ask the Expert: To what is fiancé entitled?

Karen E. Klein | E-mail questions to Karen@KarenEKlein.com
October 4, 2008

The problem: I am a widow who's been living with my fiancé for 10 years. I own several properties titled solely in my name, some purchased before we met and some after. My will does not name my fiancé as a beneficiary, but I wonder: is he entitled to any portion of my assets?

The expert: Derrick Rubin, matrimonial and family law attorney, Wisselman, Harounian & Associates, Great Neck.

The rules: Common-law marriage was abolished in New York State in 1933, so your fiancé isn't entitled to any of your assets under this theory of law. However, he could sue under a "contract," "partnership" or "equity" theory for an interest in your assets.

The strategy: If it's your intention, make clear in your will that your fiancé is not entitled to your assets. If you are concerned about him gaining control of your assets should your health deteriorate, execute a durable power of attorney that appoints a trusted family member to act on your behalf if you aren't able to make financial decisions someday.

How it works: If you don't marry your partner, he won't automatically be entitled to share in your estate. If you do marry, upon your death he'd be entitled to an "elective share" of the greater of $50,000 or one-third of your estate, even if your will does not leave him a penny.

New York recognizes common-law marriages contracted in another state or country if the legal requirements there have been met. So if you and your partner previously lived together in another state, and in that state your relationship qualified as a common-law marriage, New York would recognize the common-law marriage.

The results: Assuming you never marry your fiancé and weren't in a common-law marriage elsewhere, he shouldn't automatically be entitled to your assets. He could sue for a portion of your assets if he made any economic and/or noneconomic contributions to your homes, such as home improvements or design. He would have to prove any such entitlement in court.