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DOES A DOMESTIC PARTNER HAVE THE SAME RIGHTS AS A SPOUSE?

Jennifer Short April 5, 2022

In short, the answer is no. Domestic partnerships generally don't have the same rights as married couples when it comes to estate planning. The state in which you live, and maybe even the city or county, largely determine domestic partnership rights.

WHAT IS A DOMESTIC PARTNERSHIP?

To answer whether domestic partners have the same estate planning rights as married spouses, it is helpful to first define what a domestic partnership is. A domestic partnership is an alternative to marriage that was originally created for same-sex couples who could not legally marry.[1] However, when the US Supreme Court legalized same-sex marriage in 2015 in Obergefell v. Hodges,[2] marriage became a legal option for same-sex couples as well. A domestic partnership is not just for same-sex couples though, any couple can choose this status when marriage is not something they desire.

In general, a domestic partnership is a relationship in which two adults live together and plan to do so indefinitely. They may intend to remain exclusive, be financially responsible for each other, and may enter into a legal agreement defining their rights and responsibilities. The laws on domestic partnerships and their legal rights vary widely by state. Most states offer no domestic partnership benefits; the remaining states offer either full domestic partnership benefits or fall somewhere in between. Examples of such benefits include the following:

  • health insurance

  • sick leave

  • parental leave

  • death benefits

  • the power to make financial and medical decisions on the partner's behalf

  • adoption rights

Some states that offer domestic partnership benefits require that the couple formally registers to receive them; other states do not require formal registration. As a result, it is essential to understand your state’s laws when determining the benefits a domestic partner may have.

ESTATE PLANNING ISSUES UNMARRIED COUPLES FACE

Now that we have defined what a domestic partnership is, it is essential to understand the estate planning issues that unmarried couples face (including those who are not in a valid domestic partnership recognized by local law). Every state has default rules that address what happens to a person’s property when they die without a will. States also have laws on who can make decisions for a person when they become incapacitated and cannot make decisions for themselves. For married people, the default person is usually a spouse. But problems such as the following can arise if your significant other is not a legally recognized spouse:

  • Being unable to manage your significant other’s financial affairs if they become incapacitated. If your partner has not set up a financial power of attorney naming you as their authorized agent, a court will appoint someone as guardian. If there is no spouse, state default laws usually give priority to a child, parent, or another relative.

  • Being unable to make medical decisions for your significant other or obtain healthcare information about them during a serious illness or incapacity. If your partner has not set up a healthcare power of attorney and a living will, there are default laws that specify who is authorized to make those decisions and receive medical information. This is usually a child, parent, sibling, grandchild, or grandparent if there is no spouse.

  • Losing out on income, government benefits, insurance benefits, or retirement benefits that are exclusive to a deceased person’s surviving spouse.

  • Paying more in federal estate or gift taxes because there are no marital deductions or exemptions for unmarried couples.

  • Being unable to serve as executor or personal representative of your deceased partner’s estate if your partner has not created a will and named you to serve in that role. If a person dies without a will, state default laws usually provide that a surviving spouse, child, or another relative has priority to serve in that role.

  • Losing property or accounts after your significant other’s death if your name was not on the title.

  • Losing custody of your children if you are not their legal parent either through adoption or a legal proceeding giving you parental rights.

As this list demonstrates, unmarried couples face several estate planning issues when proper documents are not drafted. Depending on the extent to which your state’s law recognizes domestic partnerships, some of these potential benefits may still be available to you. Other benefits, however, such as benefits under federal estate and gift tax laws, are available only to married couples.

Because domestic partnership laws vary so widely, it is important to consult an experienced estate planning attorney. They can help you understand the laws that apply to your situation, and the estate planning you must do to ensure that your significant other will have the rights and benefits you want them to have. We are available to help you craft an estate plan that clearly specifies your wishes for your loved ones, money, and property regardless of the legal relationship between you and your partner. Call our office at 614-389-9711 to schedule an appointment.

TO LEARN MORE INFORMATION ABOUT ESTATE PLANNING IN OHIO, DOWNLOAD OUR CONSUMER'S GUIDE TO ESTATE PLANNING HERE.

[1] Barbara Stark, Domestic Partnerships and Same-Sex Marriage, in Fam. L. in the World Cmty. 211 (2d ed. 2009), https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1539&context=faculty_scholarship.

[2] 576 U.S. 644 (2015).