What Happens If Your Domestic Partner Dies Without a Will

What Happens If Your Domestic Partner Dies Without a Will

by Edward A. Haman, Esq., January 2019

If you are in a domestic partnership and your partner dies intestate, or without a will, state law determines what happens to your partner's estate. The outcome can vary greatly, depending upon whether your domestic partnership was created under state law or under the law of a city or county.

Domestic Partnerships Defined

A domestic partnership is a special status granted to two people by either state or municipal law. 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.

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 as to how two people become domestic partners, whether such unions are recorded in a domestic partnership registry, and what benefits 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, related to such matters as employee benefits for a partner, various degrees of participation in a partner's health care, and decisions regarding a partner's remains upon death. These benefits 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 do not 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. No matter whether your domestic partnership was created under state or municipal law, any property held by you and your partner as joint tenants with rights of survivorship would pass to the surviving partner, as would property where the survivor is a designated beneficiary.

Creating a will can confer inheritance rights to a domestic partner that are not offered by the law in the absence of a will. Also, entering into a marriage can make the state inheritance law applicable to your relationship.

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. Another option is for you and your partner to create wills or more comprehensive estate plans. Help with your estate planning needs can also be obtained from an online service provider.