Written by attorney Jacqueline Ferris Maclaren

Estate Planning Considerations for Domestic Partners

Planning for unmarried domestic partners is in many ways similar to the planning done for married couples. However, Ohio does not have the same protections for domestic partners as they do for married couples. Therefore, it is up to the domestic partner to seek out legal advice and put those protections into place. Without effective legal planning, the desire of unmarried domestic partners to take care of each other both during life and at death can be frustrated.

For domestic partners, whether they're a same sex couple or a man and woman who choose not to marry, estate planning is crucial. An estate plan outlines directives regarding financial concerns, asset ownership and distribution, and health care decisions while one is incapacitated or at death. Domestic partners need the same pertinent documents as married couples, including wills, revocable living trusts, durable powers of attorney, living wills and durable health-care powers of attorney. Unlike married couples, without these documents, a domestic partner has no legal rights.

Domestic partners don't have the same legal safety net to fall back on that married couples do. If nothing is in place, Ohio's law of descent and distribution allows assets to flow to the surviving spouse. That's not at all true for domestic partners. They can't count on their assets being distributed to their partner.

Estate planning gives domestic partners control over decisions regarding their assets, finances, child custody and health care. Some tools also protect privacy by avoiding lengthy court proceedings and help to fend off family challenges to personal decisions.

Probate Process Considerations for Domestic Partners

At death, a will names an executor and directs how the deceased's property is to be distributed. A county probate judge oversees estate administration, ensures the validity of a will, notifies and confirms all legal claimants to property and resolves ownership disputes.

In the absence of a will, the court distributes the deceased's property according to Ohio law. Without proper estate planning documents, a domestic partner has no legal standing in probate proceedings. Biological family members take legal priority pursuant to the law of descent and distribution. The law prioritizes relatives starting with children, parents and siblings.

Not having estate planning documents opens the door for family members to fight for control not only of children, but also the deceased's finances, potentially leaving a domestic partner with nothing. Estate planning documents can minimize the risks of a successful challenge from family members who may not approve of the relationship.

Revocable Living Trusts for Domestic Partners

A revocable living trust allows assets to pass to designated heirs without going through probate court, leaving the administration as a private matter instead of a public one. The creator of a trust appoints a trustee and funds the trust with assets during his or her lifetime and/or at death.

A living trust is very useful for domestic partners for delineating ownership of property and determining its distribution at death. By protecting the property from probate, it also keeps your wishes private and from being challenged by blood relatives.

Power of Attorney and Estate Tax Issues for Domestic Partners

A durable power of attorney allows your domestic partner to make business, financial and legal decisions on your behalf should you become incapable of managing your own affairs. Without a durable power of attorney, your partner will have no access to your financial and/or legal affairs.

Estate taxes provide another potential complication. Married couples enjoy an unlimited marital deduction when it comes to estate taxes. If you leave everything to your spouse, it's free of federal estate tax until the surviving spouse dies. If you leave assets to anyone else such as a domestic partner, they could be taxed at the federal and state level. Domestic partners easily could find themselves in a taxable situation which could have severe consequences. With a married couple, you're not concerned about estate taxes until the death of the second spouse. With domestic partners, though, it's an issue at the first death.

Health Care Power of Attorney and Funeral Decisions for Domestic Partners

With a durable health care power of attorney, you can name anyone to make your health care decisions when you are unable to. Blood relatives have no statutory priority with regards to health care decisions. Without a health care power of attorney, a domestic partner has no legal rights to make health care decisions on your behalf. Without any medical directive, hospitals may look toward blood relatives before a domestic partner. Therefore, domestic partners need to legally name each other in a health care power of attorney to have a role in the decision making.

When it comes to funerals and burial issues, domestic partners can name a person, such as the domestic partner, as their agent to make decisions about how to handle their remains either through burial or cremation, if a religious service will be held and, if so, what type of memorial it will be. Without such written designation, a domestic partner may have no impute over blood relatives as to your burial or cremation.

Additional resources provided by the author

Free Q&A with lawyers in your area

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer