What Happens if Your Domestic Partner Dies Without a Will

What is a domestic partnership?

A domestic partnership is a special status granted to two people by either state or municipal law that may or may not include inheritance rights, depending on where it was established. To be in a domestic partnership, you and your partner need to comply with the requirements of that law. Simply living together is not enough to create a domestic partnership.

This distinction is critical: If you and your partner are simply cohabitating without a registered domestic partnership, you are considered legal strangers under intestate succession laws, regardless of how long you've lived together. An unmarried partner who is not in a registered domestic partnership will inherit nothing if their partner dies without a will. All assets will pass to the deceased's blood relatives instead. Many people mistakenly believe that "common law marriage" automatically applies after living together for a certain period, but common law marriage is only recognized in a few states and requires specific criteria beyond simply sharing a home.

Several states and numerous local municipalities have created laws authorizing domestic partnerships, also sometimes referred to as civil unions or civil partnerships, as an alternative to marriage, primarily for same-sex couples. These laws vary in several key ways:

• Formation requirements. How two people become domestic partners
• Registration. Whether such unions are recorded in a domestic partnership registry
• Benefits. What rights and protections are conferred upon partners

In all places that authorize domestic partnerships, the law applies to same-sex partners. In some places, the law also applies to heterosexual couples where at least one partner is over the age of 62.

When the United States Supreme Court handed down its decision in Obergefell v. Hodges in 2015, in essence ordering all states and the District of Columbia to allow same-sex marriages, some jurisdictions eliminated domestic partnerships.

Domestic partnerships authorized by municipal law

Domestic partnerships created under the law of a city or county typically confer limited benefits that only apply within the municipality.

Since inheritance is a matter of state law, a city or county has no authority to enact laws regarding inheritance. Therefore, domestic partnerships that were created solely under the law of a city or county don’t provide for one domestic partner to inherit from another. In these situations, a domestic partner's sole property would pass to the individual's heirs under state law, not to the surviving partner.

Domestic partnerships authorized by state law

Domestic partnerships created under state law can involve inheritance rights, if the state law provides for that. Only a few states have domestic partnership laws, some of which provide for partners to have the same inheritance rights as spouses.

If the state where you entered into your domestic partnership does provide for inheritance rights, you are entitled to the same inheritance as a spouse in a marriage. Although the details vary from state to state, this would typically entitle you to inherit from one-third to all of your partner's estate, depending upon whether your partner has any children. To make sure your domestic partner inherits what you’d like them to, a will can confer inheritance rights to them. Also, if you get married, the state inheritance law will become applicable to your relationship.

What property passes regardless of partnership type

No matter whether your domestic partnership was created under state or municipal law, certain property will pass to the surviving partner:

• Property held as joint tenants with rights of survivorship
• Property where the survivor is a designated beneficiary

What happens to bank accounts and financial assets

Bank accounts and other financial assets are handled differently depending on how they were titled and whether beneficiary designations were in place. 

• Accounts held solely in your deceased partner's name without a designated beneficiary will be frozen upon death and must go through probate, following intestate succession laws. It means in a municipal-only partnership, these funds would pass to blood relatives, not you.
• Accounts with payable-on-death (POD) or transfer-on-death (TOD) designations pass directly to the named beneficiary without probate. If your partner named you as the POD or TOD beneficiary on bank accounts, brokerage accounts, or retirement accounts, you can typically claim those funds by presenting a death certificate to the financial institution. 
• Joint accounts where both partners are named owners also pass to the surviving partner automatically.

If you need immediate access to funds for funeral expenses or household bills, be aware that solely-owned accounts will likely be frozen as soon as the bank learns of the death. Contact the financial institution promptly to understand what documentation you'll need and whether any emergency provisions exist for immediate expenses while the estate is being settled.

What happens to personal property and belongings

Personal belongings, household items, and sentimental property follow the same intestate succession rules as other assets. 

• In a municipal-only domestic partnership, the surviving partner has no legal claim to items solely owned by the deceased. Even furniture, electronics, or sentimental items like photographs and heirlooms go to them if the deceased didn't leave a will.
• Items you purchased jointly or gifts specifically given to you remain your property, but proving ownership without documentation can be challenging.
• Blood relatives who inherit under intestate succession laws technically own all of the deceased's personal property and could legally demand its return. Sometimes, it creates painful situations where a surviving partner must negotiate with in-laws over items from their shared home.
• In state-registered partnerships with spousal-equivalent inheritance rights, surviving partners receive protection similar to married spouses, typically including rights to household furnishings and personal effects. This stark difference in outcomes highlights why domestic partners should create wills that specifically address personal property distribution, ensuring cherished items go to the people they intend.

How to protect your inheritance rights

A will is the easiest way to confer inheritance rights to a domestic partner that the law does not offer.

To be sure of your inheritance rights as a domestic partner, you should check the law in your state or consult with a local attorney. The safest approach is for you and your partner to create wills or more comprehensive estate plans, which you can do with a lawyer or an online service provider.

What are the housing rights when your domestic partner dies?

One of the most pressing concerns for surviving domestic partners is whether they can remain in their shared home. The answer depends on several factors:

• How the property is owned
• Whether you rent or own the home
• What type of domestic partnership you have

If you rent your home and both partners are named on the lease, the surviving partner typically has the right to remain as a tenant under the existing lease terms. However, if only your deceased partner was on the lease, your rights are far less certain. You may need to negotiate a new lease with the landlord or could face eviction. Review your lease agreement immediately and contact your landlord to understand your options.

For homes owned solely by the deceased partner, your rights vary dramatically based on your partnership status.

• In a state-registered domestic partnership with inheritance rights, intestate succession laws may grant you partial or full ownership of the home, similar to a surviving spouse. You would typically have the right to remain in the home during probate and may inherit an interest in the property depending on whether your partner had children.
• In a municipal-only domestic partnership, the situation is much more precarious. Without joint ownership, a beneficiary designation through a transfer-on-death deed, or provisions in a will, the surviving partner typically has no legal right to remain in the home. The property would pass to the deceased's heirs under state law, and those heirs could sell the property or ask you to leave.
• If your home is jointly owned with rights of survivorship, you automatically become the sole owner upon your partner's death, regardless of your partnership type.

Probate process and estate administration without a will

When your domestic partner dies without a will, their estate must go through probate. 

The first step is for someone to petition the probate court to be appointed as the estate's administrator (sometimes called a personal representative).

In state-registered domestic partnerships with spousal-equivalent rights, the surviving partner typically has priority to serve as administrator, similar to a surviving spouse. But for municipal-only partnerships, the surviving partner may have no legal standing, and blood relatives, such as adult children, parents, or siblings will have priority.

Once appointed, the administrator must inventory all assets, notify creditors, pay outstanding debts and taxes, and eventually distribute remaining assets to heirs according to state intestate succession laws. This process typically takes 6–18 months and can be costly, with court fees, attorney fees, and administrator compensation often totaling 3% to 7% of the estate's value.

If you are in a domestic partnership without inheritance rights and your partner dies intestate, you will have limited involvement in this process.

• The administrator will be one of your partner's blood relatives, and assets will be distributed to those relatives according to state law.
• Having a will in place avoids much of this complexity by naming an executor, clearly stating the deceased's wishes, and potentially allowing for simplified probate procedures in many states, yet most Americans lack wills until their 70s.

Edward A. Haman, Esq., contributed to this article.