The domestic partnership property agreement has many elements of a standard pre-marital contract, but it has very different purposes. A pre-marital agreement attempts to keep property separate and avoids “co-mingling” assets in case there is a divorce. The domestic partnership property agreement keeps assets separate on paper because truly co-mingling assets could lead to negative gift tax consequences. Married couples are allowed to transfer as much property between each other as they wish, but unmarried people are limited to giving $12,000 per year.
A purpose of marriage is to legally bind two people together, giving both of them certain rights and duties. Some of these responsibilities include a duty to support each other financially, mutually make a home, and to care for each other’s health and well-being. Some of the rights are for a partner to get support in times of need and to be taken care of during times of ill-health.
In a marriage, these rights and responsibilities come to a couple in whole when a marriage certificate is signed and witnessed by a judge or other legal authority. In the case of a same-gender relationship, these rights and duties must be spelled out in a written agreement, called the Civil Partnership Agreement, signed by both parties and notarized. Other couples may not want all of the rights and responsibilities of marriage, and these limited aspects of your legal relationship should also be put into writing. Our firm also requires witnesses so that there can be no doubt that the contract was signed and understood by both partners.
One of the most common mistakes made in non-attorney drafted agreements is writing down all of the feelings and emotions the partners have for each other. Despite the desire to let the world know how you feel about your partner, this is often a fatal mistake among same-gender couples. Judges have declared these kinds of agreements null and void because the same-gender partner could not have possibly “been in their right mind” to describe these feelings about a person of the same gender, or the judge may “stretch” the wording and call this document an illegal contract for sex. Therefore, our agreements focus only on the economic and social benefits of the relationship. Until marriage between two same-gender partners is legal, this will remain an unfortunate side affect to the overall cure of a Civil Partnership Agreement, and unless there is something less binding than marriage but more legal than “dating”, unmarried heterosexual couples should have their wishes in writing as well.
When enacted in conjunction with the powers of attorney, the revocable living trust and the Will, the Civil Partnership Agreement is a powerful contract giving the partners not only the rights and responsibilities of a marriage they wish but also the legal authority to carry out these responsibilities.
If you would like for our firm to assist you with a comprehensive domestic partnership estate plan, then please proceed to the Questionnaire page and contact our office at (919) 844-7993.