DOMESTIC PARTNERSHIPS

Domestic Partnership Agreements
Cohabitation Agreements
Oral Agreements  |  Death of a Partner
Health Care Directives and Wills  |  Powers of Attorney

Domestic Partnership Agreements:

Unmarried parties who acquire real estate or personal property together certainly have the right to enter into contracts setting forth their respective interests. Likewise, there is nothing to prevent unmarried parties who have business relationships together from entering into business agreements to govern the operation of those enterprises. The fact that the parties live together is not essential to the validity of such agreements, unless there is over reaching. The best way to ensure agreements are enforceable is to have competent lawyers draft the agreements. If you do it on your own, consider videotaping the mutual signing of the agreement.

Cohabitation Agreements:

It is possible for unmarried parties to enter into a binding agreement similar to a "prenuptial agreement" setting forth the waiver of future claims to property or even support.

In many states (including Kentucky), unmarried domestic partners may enter into an agreement that creates property or support rights which are not based solely on each party's direct financial contribution to a specific asset. If one party makes a significant financial contribution to an asset such as a house while the other party's contribution is not financial (such as being a homemaker), they may make an agreement that creates each party's respective rights and duties.

It was this latter type of agreement that courts traditionally refused to enforce because it was thought to promote prostitution. Things changed in 1976 when the California Supreme Court decided Marvin v. Marvin, (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106]. In that case, the court decided unmarried cohabitants could enter into valid contracts to share property or pay support in the event the relationship came to an end. Since then, at least 37 states and the District of Columbia have recognized express cohabitation agreements as valid, enforceable contracts.

Today, parties who could marry but who choose to live together without marrying and same-sex cohabitants (who do not have the option of a legal marriage) should consider entering into a written agreement prepared by an attorney knowledgeable about such matters which sets out in detail the parties' respective rights and duties on the matters of property (real or personal) and support.

Such an agreement should cover all of the parties' property, including property owned before the relationship began, as well as property accumulated by either party thereafter (either separately or jointly). It is recommended to especially specify who gets to keep what in the event of a breakup.

The parties' agreement should spell out how they will divide day-to-day costs for food, utilities, laundry, housing, etc.

The parties may opt to simply state in their agreement that, if they separate, each of them will have the right to take immediate possession of their respective separate property and that all jointly-owned property will be divided equally. If there is property owned jointly by the parties but not equally, the agreement should specify a method for dividing it.

Including a dispute resolution method such as mediation or arbitration is suggested, in which case the parties would include their agreement to resort to qualified mediator or arbitrator to negotiate a settlement of any disagreements about the disposition of property.

Oral Agreements Are Not Recommended:

While an oral agreement between unmarried domestic partners may be valid and enforceable, litigating such claims is often difficult and expensive. Oral agreements are usually difficult to prove or disprove and offer poor protection to the parties. As the old adage goes, "Oral agreements are not worth the paper they are written on."

What Happens When One Partner Dies?

If one person of a married couple dies, the surviving spouse has certain specific legal rights which may be enforced against the deceased's estate.

That is not true for unmarried domestic partners. In such cases, unless there is a valid will or other instrument conveying ownership, the surviving partner may be left without a home, car, investments, real and/or personal property.

It is strongly recommended that unmarried domestic partners consult with an attorney to discuss the making of wills, the designation of retirement plan and insurance beneficiaries and other mechanisms for providing for each other in the event of one party's death.

The law of Kentucky will not assure an unmarried domestic partner receives a share of the deceased partner's assets, as it does with married couples.

Any written domestic partnership agreement prepared should address this issue and specifically address other potential claimants' rights in the event of death.

The other side of this coin is that such an agreement can also ensure that the surviving domestic partner's claims against the deceased partner's estate are limited or a party's children are protected.

Health Care Directives and Living Wills:

An unmarried domestic partner does not have the legal right to make health care decisions in the event the other partner is incapacitated and unable to express his/her wishes with regard to medical treatment.

However, through a Health Care Directive and a Living Will, either party can make known his or her choices in the event of a catastrophic illness or condition and, further, appoint an individual such as his/her domestic partner with the authority to make such decisions in such an event.

Such choices can include the use or restriction of artificial respiration and the administration or restriction of life-prolonging water and other sustenence or drugs intended to abate the patient's pain and suffering.

Durable Powers of Attorney:

A durable power of attorney for financial matters can specifically provide for a party's right to handle matters on behalf of the other partner under express circumstances such as unavailability or complete mental/physical incapacity.

In other words, if one partner becomes ill or injured to the extent he/she cannot communicate or make decisions for himself/herself and the sick or injured partner had previously appointed the other party with a Durable Power of Attorney, that party could be permitted to make health care decisions, write checks to pay bills, dispose of real and/or personal property assets and otherwise act on behalf of the sick or injured partner.

See, also, our sections on
Living Together
and
Gay & Lesbian Couples