Civil Unions and Intestate Succession Laws
Only a small number of states currently recognize civil unions. In those states that recognize them, a party to a civil union is entitled to inherit from a deceased partner’s estate under the laws of intestate succession in the same manner as a spouse to a heterosexual marriage in that state. For example, if a husband or wife would be entitled to an elective share, statutory share or intestate share of the deceased spouse’s estate under state intestacy laws, a party to a civil union would also be entitled to such share of the deceased partner’s estate. Nevertheless, there are some exceptions. Even in those states where civil unions are recognized, the rights and benefits granted to civil union partners vary from state to state.
If you are or may become a party to a civil union, familiarize yourself with the laws in your state regarding probate, intestate succession, and civil unions to better understand your rights regarding inheritance and any property you share with your partner.
Domestic Partnerships and Intestate Succession Laws
In states that have domestic partner registries, a domestic partnership confers many important rights and benefits on both partners. But those rights and benefits are not always equal to those of married couples. One of the most important rights the law confers on married couples is the right to inherit real estate, personal property, and other assets from a deceased spouse’s estate. In some states, such as California and Oregon, registered domestic partners are entitled to inherit from a deceased partner’s estate under the laws of intestate succession in the same manner as a surviving spouse would receive a spousal share. However, in some states, domestic partners are excluded from intestate inheritance rights altogether or do not receive certain protections available to a surviving spouse, such as a homestead or family allowance to protect estate assets from creditor claims.
To determine whether your domestic partner has the right to receive a share of your estate and what other protections are available to domestic partners under state intestacy laws, consult an estate planning lawyer licensed in your state. Because domestic partners may currently receive lesser rights or protections than married couples in some states, it is essential for domestic partners to execute wills and other estate planning documents to protect each other.
Federal Law and Same-Sex Unions
In accordance with the Defense of Marriage Act, also known as the DOMA, enacted in 1996, federal law does not recognize same-sex unions. Federal programs and benefits provided to a surviving spouse are not available to a civil union partner or domestic partner. Furthermore, federal law specifically provides that a state is not required to recognize a same-sex marriage entered into in another state. A majority of states have enacted their own Defense of Marriage Act laws.
How to Hold Title to Property With Your Partner
If property is held in certain forms of title, the property will not pass through probate upon the death of an owner and therefore, such property does not pass according to the laws of intestate succession if you die without a will. For information on the different ways you can hold title to property with your partner, visit our Title to Property page.
Return to Free Estate Planning Guide for Spouses and Partners or go to Domestic Partners page.
If Your State Does Not Recognize Same-Sex Unions
Even if you entered into a civil union or domestic partnership in a state where they are recognized, if domestic partnerships or civil unions are not recognized in the state where you are a permanent resident, your partner may have no rights to inherit from your estate if you die without a will, also called dying intestate. Your surviving partner will also have no legal right to make an election against your will or take an elective share of your estate.
If you reside in a state that does not recognize domestic partners or civil unions and you die without a will, your estate may pass to your biological children, your parents, your siblings, or other relatives in amounts determined by state intestacy laws. If you have a child that is not your biological child and is not legally adopted, your child may be denied the right to inherit from your estate if you do not have a will.
Don’t Rely on State Intestacy Laws to Protect Your Partner
Whatever the law is in your state today regarding same-sex marriage, it may be different tomorrow. The laws on gay marriage are hotly debated. Bills to change the laws on gay marriage are under consideration in many state legislatures today. There are also many cases before the courts challenging every aspect of same-sex unions. As a result, one should never rely on the laws of intestate succession to provide an inheritance or financial support for a same-sex partner.
Even if you currently reside in a state that recognizes civil unions or domestic partnerships, the benefits of making a will or living trust cannot be overstated. By executing a will and other estate planning documents, such as a living trust, you can ensure your partner will receive the inheritance you intend. One of the most important reasons to execute a will or living trust is to ensure your partner is not thrown out of your home. If you want your partner to receive specific items of personal property or to receive financial support from your estate, you can include these types of provisions in your estate plan. You can also use a will to name your partner as executor of your estate.
Intestate succession laws date back hundreds of years and were originally designed to protect surviving spouses and children. They were not drafted with the interests of same-sex couples in mind. By making a will or living trust, you can have a testamentary instrument tailored to your specific objectives and maintain control over your property.
If You Own Real Estate In More Than One State
Making a will is also very important if you own real property in more than one state. If you own real estate in another state and die without a will, the real estate will pass according to the intestate succession laws of the state where the real estate is located. Unless you own the real estate as joint tenants, tenancy by the entirety or another form of ownership that allows your share in the real estate to transfer to your surviving partner by operation of law, your partner may have no right to inherit your interest in such real estate, especially if the laws of that state do not recognize your domestic partnership or civil union.