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What Legal Rights Does a Domestic Partner Have?

Do Domestic Partners Have Legal Rights? Sadly, domestic partners have very few to no rights as compared to married couples when it comes to estate planning. In large part, it depends on where the domestic partners reside. In some cases, it even depends on the city and county within the state. 

What Is a Domestic Partnership?

Before we can answer the question, Do Domestic Partners Have Legal Rights, we need to define domestic partners. Most people know what a marriage is. In short, it’s a union between two people in the eyes of the law. And with marriage comes several legal benefits. Not everyone understands the concept of domestic partnership. In understanding what legal rights a domestic partner may have, let’s define the term. Domestic partnerships are alternatives to marriage. These unions were initially structured to support same-sex couples who could not legally get married. In 2015, the U.S. Supreme Court legalized same-sex marriage making marriage an option for everyone, including same-sex couples. A domestic partnership union is not just for same-sex couples. Any couple may choose to enter into a domestic partner relationship when they feel marriage is an undesirable option.  

Generally, a domestic partnership is a relationship between two people who have chosen to live together indefinitely. They intend to be the other’s only domestic partner and they may choose to be financially responsible for each other. In some cases, they choose to enter into a legal agreement that defines their respective responsibilities and rights. Each state determines how it treats such unions and the benefits it allows. As of today, most states offer NO domestic partnership benefits. In fact, very few states offer full benefits to domestic partners. The remaining offer some benefits. Included in the list of benefits offered by some states are:   

  • health insurance
  • sick leave
  • parental leave
  • death benefits
  • the power to make financial and medical decisions on the partner’s behalf
  • adoption rights

In order to receive domestic partnership benefits, some states require that a couple register. Therefore, if you are in a domestic partnership, it’s imperative that you know and understand your state’s laws.

Estate Planning for Unmarried Couples.

If you are an unmarried couple in a domestic partnership relationship or contemplating one, it is important that you understand the estate planning issues you may face. Each state has rules regarding what happens to someone’s assets when they die or become incapacitated. If you are married, the default person is your spouse. Legally, they get to make decisions on your behalf. But if you are not legally married, what happens?

Here are a few problems that could arise:

  • If there is no power of attorney naming your partner as your agent, most institutions will not permit them to access your accounts if you become incapacitated or die. Without legal intervention, that would make it nearly impossible for your partner to manage your affairs. If there is no spouse, many states grant priority to children, parents, or other relatives, and in some cases, the state might just appoint a conservator.
  • Another problem that could arise is without a legal document, your domestic partner would be unable to make medical decisions for you. Further, they might not be able to visit you in the hospital or obtain healthcare information about you if you become seriously ill or incapacitated. Again, most states’ default laws specify that the person authorized to make those decisions and receive medical information is usually a child, parent, sibling, grandchild, or grandparent if there is no spouse.
  • If there is no spouse, the domestic partner could lose out on income, government benefits, insurance benefits, or retirement benefits that are exclusive to a deceased person’s surviving spouse.
  • The marital deduction would not apply for federal estate or gift tax purposes if there is no spouse or a state exemption for unmarried couples.
  • There would be no permitted tax deferral by rolling over retirement accounts since this benefit would only apply to the deceased account owner’s surviving spouse.
  • If there is no will or trust in place appointing the domestic partner as executor or trustee, by default only a family member would be allowed to serve in that position. 
  • If the domestic partner is not named as an owner or joint owner of certain property or on the accounts of the deceased, the domestic partner will likely not be able to receive.
  • Finally, if you have children with your domestic partner but you are not the legal parent, you will lose out. Legal parentage can be demonstrated by adoption or some other legal proceeding giving you parental rights.  

Sadly, this list shows that unmarried couples face several estate planning hurdles. That is why it’s so important to know the law. Depending on your state and the extent to which your state recognizes domestic partnerships, some benefits might be available to unmarried couples. Other benefits, however, such as benefits under federal estate and gift tax laws or retirement account laws, are available only to married couples.

Because domestic partnership laws vary so much, it is important to consult with a lawyer. That attorney should be someone who not only understands the law but also how it applies to you. Know your rights before it’s too late.

Francine D. Ward
Attorney-At-Law, Author, Speaker

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