Updated August 6, 2026. Quick answer: since marriage equality, a married same-sex couple has the same defaults as any other married couple, and most of this site applies to them unchanged. Three situations are genuinely different, and all three affect older couples most: unmarried couples who never married and now have no defaults at all, couples carrying instruments written before their marriage was recognised, and estates a family may be motivated to contest.
If you never married
Then the rules that apply to you are the ones on the unmarried-couples spine, in full: no intestate share, no elective share, no survivor benefit, no default medical authority — unless you registered a domestic partnership or civil union, which in several states carries a spouse’s intestate share and is worth checking before assuming otherwise (which states, and what each confers). Nothing about the reason a couple did not marry changes the legal consequence of not having.
That is worth saying plainly because a lot of couples who spent decades unable to marry, and then chose not to, are carrying an assumption that some accumulated status compensates. It does not. The documents do, entirely — which is a better position to be in than it sounds, because it is fixable on your own initiative.
Documents written in a different legal era
This is the failure mode specific to couples who have been together a long time. Instruments drafted when your relationship had no legal name often describe it in terms that no longer match, and paperwork that does not match causes delay at exactly the wrong moment.
Things worth pulling out and reading again:
- Beneficiary forms naming a partner as “friend” or by an old name, or naming a sibling as a placeholder during years when naming a partner felt unsafe. These pay exactly what they say — they outrank the will — and a placeholder left in place is one of the commonest ways money goes to the wrong person.
- A registered domestic partnership or civil union you never formally ended. If it still exists, it may still carry rights, and in a few states it carries valuable ones. If you later married the same person, the two statuses can interact in ways worth confirming rather than guessing.
- Deeds and account titles that were deliberately kept in one name.
- Name and gender markers that differ across documents. Where a beneficiary form, a deed, a will and an identity document do not agree, the practical cost is delay and requests for proof, borne by the survivor. Consistency across the set is the fix, and it is administrative rather than legal.
When the family is the risk
For some couples the realistic threat is not the statute but a relative who intends to challenge what the documents say. The defence is unglamorous and mostly procedural.
Execute perfectly. Most successful challenges attack how a document was signed, not what it said — witnesses, notarisation, the order of signatures. Your state’s requirements are the checklist, and meeting them exactly removes the cheapest line of attack.
Do it while capacity is unquestionable. Documents signed during a health decline invite an argument that they were not understood — the window closes earlier than people expect. Signing earlier is the single most effective protection available.
Move what you can outside the will. Beneficiary designations, payable-on-death registrations and survivorship deeds pass outside probate and are harder to attack than a will is, because there is no estate proceeding in which to attack them. A plan that leaves little in the probate estate leaves little to fight over.
Consider a no-contest clause where your state gives it force, and know that the states differ on whether such clauses are enforceable and on what happens if a challenge is brought in good faith. That is a question for a lawyer in your state; we do not have a page on it and will not pretend otherwise.
The document the rest of this depends on
A correctly executed will is what the consistency check above is checking against, and it is the instrument every other item here points back to. Execution formalities are where wills actually fail, so follow your state’s requirements exactly.
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Sources
The legal statements on this page are the ones cited on the pages linked above — principally the unmarried-couples spine, the beneficiary page and the will-requirements cross — each of which carries its own primary citations. Read 2026-08-06.
Honest gap: we do not have a page on no-contest clauses, and their enforceability varies by state, so this page raises the question without answering it. Nor do we cover the pre-2015 relationship-recognition case law that can bear on older instruments; where that is in play it is genuinely a lawyer question and not a form-filling one.
See methodology and corrections. General information about published statutes, not legal advice.