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Partner Up

May 15, 2024

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Author: Shea Law

Insights

While there is no question that everyone can benefit from the security and peace of mind that comes with an estate plan, married couples do enjoy several basic legal protections regarding medical decisions, assets, and custody that domestic partnerships and other non-traditional arrangements do not enjoy.  This makes the need for estate planning for domestic partners all the more necessary.

Whether because of convenience, personal preference, or life circumstances, domestic partnerships are an increasingly popular lifestyle option. Today there are more than 20 million people living in domestic partnerships, a number that has nearly tripled in the last two decades.  Unfortunately, the fact that domestic partners essentially lack the same rights and legal benefits as married couples makes those 20 million people vulnerable to potential headaches, heartache, and life-changing economic consequences when a partner gets sick, becomes incapacitated, or passes away. From progeny and property to healthcare and financial holdings, an estate plan establishes an essential set of protections for anyone in a domestic partnership.

Estate planning protections

The list of ways in which a comprehensive estate plan from a trusted estate planning attorney protects domestic partners is a sobering reminder of just how vulnerable those individuals are without the protections of an estate plan:

Property protections

Many domestic partners do not own property jointly. If your name is not on the deed and your partner passes away, there is no way to legally prove that they wanted the property in your name or wanted you to continue living in the residence—at least not without an estate plan. Even the wording on the deed itself can make a big difference, making real estate rights and responsibilities a critical piece of any estate plan.

Powers of attorney

If your domestic partner ends up in the hospital, you have no meaningful legal rights absent a power of attorney. Even visitation can be problematic. And without established power of attorney documentation, the hospital will default to biological family members for decision-making. For better or for worse (no pun intended), societal norms still view legal marriage as fundamentally different from a domestic partnership. Whether it’s a bank or a doctor’s office, everything from small conveniences to life-altering decisions might be taken out of your hands without a durable power of attorney in hand.

Custody and family considerations

For many domestic partners, custody considerations are the single most important reason to make sure they have an ironclad estate plan in place. Domestic partnerships are uniquely vulnerable to potentially losing custody of minor children, especially for kids conceived through surrogacy who are only biologically related to one partner in the relationship (and have not yet been formally adopted by the non-biological partner). Family conflicts can add a complicating and concerning element, especially when a member or members of your partner’s family might not approve of the relationship or have different plans and preferences for the children in question. Also. in the State of Michigan, assets not specified in an estate plan will likely go to a partner’s parents or closest living relatives. In other words, without an estate plan in place, a domestic partner may be met with devastating legal obstacles regarding custody and the transfer of assets following their partner’s death.

Funeral arrangements

During one of the most painful and sensitive times of your life, the last thing anyone wants is to have very personal and private funeral arrangements taken out of their hands. Unfortunately, that is precisely what happens to many domestic partners who don’t have an estate plan in place.

The bottom line is that if legal documents don’t specifically delineate your rights, you could be vulnerable to having important decisions, assets, and even children taken from you. Which is why it’s so important to consider the bigger picture and not put off your estate planning responsibilities. Don’t get caught in the trap of thinking these are issues you can take care of down the road. Although estate plans can always be changed during your lifetime, they can’t be created for your partner after they’ve passed away.

For all intents and purposes, most domestic partnerships feel and function like legal marriages—and the realization that you are missing the critical rights and protections given to married couples can be shocking.  Protect your partner, your interests, your assets, and your family by working with a trusted estate planning attorney to make sure you have the same legal rights and safeguards as any married couple.

The information in this blog post is based on general legal and tax rules and is strictly for informational purposes only. It is not intended as legal or tax advice. Readers should consult their own legal and tax advisors as to their specific legal or tax situation as it may require more complex analysis, or the consideration of other information.