Domestic Partnership Agreements

Tuesday, April 24, 2012

    No document constructed by humans can perfectly resolve all future conflicts.

    However, if you are living together, but are not married, a formal Domestic Partnership Agreement can give a great deal of predictability to the eventual dissolution of the relationship.

    Whether a formal domestic partnership is more or less stable than a marriage is not the question.  Even the best relationship will eventually come to an end, even if the couple never breaks up, because in all cases, one partner or spouse will die.

    This, and a great many other possibilities, can be discussed in a formal Domestic Partnership Agreement.

    A great deal of predictability can be injected into a very uncertain situation by such an agreement.

    In addition to a formal Domestic Partnership Agreement, other documents will likely also be needed.  These will range from wills or trusts, to advance directives for health care, to nominations of guardian and conservator, and even extend to formal arrangements to make sure that the partner is the one who gets to decide on burial arrangements.

    Remember, people who choose simply to live together, even if they have a formal Domestic Partnership Agreement, are technically not related.  They would have no rights to inherit, to make health care decisions, to be appointed guardian or conservator ahead of a relative, or to determine burial arrangements without formal documents conferring these rights.

    To return to the actual Domestic Partnership Agreement, however, issues that can often be addressed include clearly stating what each person owns and what each person owes at the time the Domestic Partnership Agreement is signed.  Other issues can include how assets that are acquired later will be held, whether such jointly acquired assets will be presumed to pass to the survivor on death (if the relationship lasts until death), or whether the person’s share of such assets will go to their estate, etc.

    Domestic Partnership Agreements also can clarify whether there is an expectation that each partner will contribute equally to joint expenses.

    In a related matter, a Domestic Partnership Agreement can also specify whether one partner has a right of support from the other partner, either during the relationship, or after the relationship, in case the relationship breaks up.

    Perhaps even more important, a Domestic Partnership Agreement can force people to think about the future.

    It can be crucial to agree that both partners have the same expectations.  It can also be crucial for both partners to think through various possibilities that life may hold.

    As an example, the partners need to decide (and the Domestic Partnership Agreement needs to specify) how to terminate the relationship, and what happens if there is a temporary separation.  Such separations occur regularly for work, or (especially later in life) for health care.  Is such a separation a termination of the relationship?  If not, what does constitute a termination?

    Perhaps even more crucial, what about a long term separation, especially one that results from the need for long term care?

    Remember, the chances that one person in a long term relationship will need long term care in the last months or years of life is ever increasing.

    These are all important issues.  These are also issues that must be answered.  Whether these issues are considered or not may make a crucial difference in whether the Domestic Partnership Agreement meets its intended purpose or not.
    These are not simple questions either for the attorney, or for the people who are entering the Domestic Partnership Agreement.  They will require thought and careful drafting.

    Some of these issues will also involve a consideration of Medicaid and other long term care issues.

    For a discussion of some of the Medicaid specific issues, see the companion article that is posted separately.

    As with many things, what initially looks like a rather simple matter becomes much more complicated on sober consideration.  And like many things, this is neither simply a family law matter or an elder law matter.  It is instead a human issue, which requires a knowledge of both family law and elder law to properly handle.