Does a Domestic Partner Have the Same Rights as a Spouse When It Comes to Estate Planning?

Domestic partnership is an alternative to marriage, the most common way for a couple to legally commit to each other. For some time, domestic partnerships and civil unions were the only option for same-sex couples wishing to commit to each other while marriage was not legally available. In general, couples in a domestic partnership do not have the same rights as married couples when it comes to estate planning. However, the state in which you live, and maybe even the city or county, determines domestic partners’ rights.

What Is a Domestic Partnership?
In general, a domestic partnership is a relationship in which two adults live together and plan to do so indefinitely. They each may intend to remain the other’s only domestic partner, may be financially responsible for each other, and may or may not enter into a legal agreement defining their rights and responsibilities. A domestic partnership is not just for same-sex couples. Any couple can choose this status when marriage is not something they desire, for whatever reason.

In 2015, the US Supreme Court legalized same-sex marriage in Obergefell v. Hodges (576 U.S. 644 (2015)). Some couples, whether same-sex or not, may choose a domestic partnership rather than marriage.

The laws on domestic partnerships and the legal rights and benefits domestic partners receive vary widely by state. Michigan, like most states, offers no domestic partnership benefits. Some states offer full domestic partnership and others offer a few benefits. Even in states that do not extend full benefits to domestic partnerships, cities or counties may recognize the partnership. For example, in Michigan the following cities and counties recognized domestic partnerships:

  • Ann Arbor
  • Detroit
  • East Lansing
  • Kalamazoo
  • Washtenaw County
  • Wayne County

Recognition of the domestic partnership is important as may allow for domestic partners to have rights extended to married couples.  Such benefits may 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

States, cities, or counties that offer domestic partnership benefits may require that the couple formally register in order to receive them, while others do not require formal registration. As a result, it is essential to understand your locale’s laws when determining the benefits a domestic partner may have.

Estate Planning Issues Unmarried Couples Face
Every state has default rules that address what happens to a person’s property upon their death or who can make decisions for a person who is incapacitated and cannot make decisions for themselves. For married people, the default person is usually a spouse. But problems can arise if your significant other is not a legally recognized spouse. For example:

  • Being unable to manage your significant other’s financial affairs or speak with institutions or government agencies on their behalf if they become incapacitated. If your partner has not set up a financial power of attorney naming you as their agent authorized to act on their behalf, a court will need to appoint someone as guardian or conservator to manage their affairs. If there is no spouse, state default laws usually give priority to a child, a parent, or another relative when appointing a guardian or conservator.
  • Being unable to make medical decisions for your significant other, visit them in a hospital, or obtain healthcare information about them during a serious illness or incapacity. If your partner has not given authorization under HIPAA (health care privacy regulations), set up a healthcare power of attorney, and expressed their wishes regarding life support and end-of-life decisions, there are default laws that specify who is authorized to make those decisions and receive medical information. If no spouse, a court may give priority to a child, parent, sibling, grandchild, or grandparent.
  • 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 is no marital deduction or exemption for unmarried couples.
  • Being unable to take advantage of a tax deferral by rolling over retirement accounts because they can be rolled over only by the deceased account owner’s surviving spouse.
  • Being unable to serve as executor or personal representative of a deceased partner’s estate if the decedent had not created a will and named their surviving partner to serve in that role. If a person dies without a will, Michigan law, like most states, gives priority to a surviving spouse, then children or other relatives 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 many estate planning issues. Depending on your state, county, or city, and the extent to which your locale’s laws recognize domestic partnerships, some of these potential benefits may still be available to you as an unmarried person in a domestic partnership. Other benefits however, such as benefits under federal estate and gift tax laws or retirement account laws, are available only to married couples.

Domestic partnership laws vary widely, so it is important to consult an experienced estate planning attorney in your area who 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 if you become incapacitated and upon your death. We are available to help you craft an estate plan that clearly specifies your wishes for your loved ones, assets, and property regardless of the legal relationship between you and your partner.