Frequently Asked Questions About the Rights of Domestic Partners

FAQ

Now that D.C. permits same-sex marriage, does that eliminate the rules that applied to domestic partners?

No. The same-sex marriage laws do not replace the domestic partnership laws. All couples now have a choice. A couple can marry and a couple that prefers not to marry can still register as domestic partners in D.C.

What is the D.C. Domestic Partnership Equality Amendment Act?

The D.C. Domestic Partnership Equality Amendment Act became law on April 6, 2006. The law amended various provisions of the D.C. Code to expand the rights that domestic partners have when the partnership is dissolved or when one of the partners dies. The 2006 Act creates important property and support rights for eligible couples who register as domestic partners. These rights are similar to the property and support rights that married persons have. The Act provides for:

• Inheritance rights similar to those held by a surviving spouse, including the right to an elective share of a deceased partner's estate (so that a domestic partner cannot completely disinherit his or her surviving partner);
• Equitable division of partnership property if a partner dissolves the partnership;
• Support (alimony) for a former partner, if appropriate, under the same rules applicable to divorcing spouses; and
• The right to enter into a premarital agreement.

Who may register as domestic partners in the District of Columbia?

To register as domestic partners, parties must meet the following requirements:

• They must be in a committed relationship and share a residence;
• Both parties must be at least 18 years old and competent to enter into a legal contract;
• Each party must be the sole domestic partner of the other; and
• Neither party can be married to or registered as a domestic partner with anyone else.

Do parties have to be residents of the District of Columbia to be eligible to register as domestic partners?

No.

Do parties have to be a same-sex couple to be eligible to register as domestic partners?

No. Opposite-sex couples can register as domestic partners, too.

How is registration accomplished?

Partners may register by filing a simple registration statement. They must apply in person at the D.C. Department of Health, Vital Records Division, 825 North Capitol Street, N.E., Washington, D.C. 20002. For more information go to www.doh.dc.gov. There is a registration fee of $45. Upon filing the registration statement, the partners automatically have the rights provided under the 2006 Act.

What property rights does a surviving domestic partner have upon the death of his or her partner?

The surviving domestic partner is entitled to a specific share of the deceased partner's estate. If a deceased partner dies without a will, the surviving partner is entitled to between 50 per cent and 100 percent of the deceased partner's property. The percentage depends on whether the deceased partner has surviving children, grandchildren, or parents.

If a partner dies with a will, and the will leaves a bequest to the surviving partner, the surviving partner can renounce the bequest and elect instead to take his or her statutory share of the decedent's assets. This is often called the "elective share." A partner would typically elect the statutory share if it is larger than the bequest s/he would have received under the will. If a partner renounces a bequest, s/he will receive no more than 50% of the assets passing under the will. If a partner dies with a will, but leaves nothing to the surviving partner, the surviving partner is entitled to a statutory share of no more than 50% of the assets passing under the will.

If a domestic partner dies without a will, who administers the estate?

The personal representative of an estate must gather all of the decedent's property and pay from the estate assets the decedent's debts, taxes, and expenses of the estate's administration. The personal representative then distributes the remaining property estate to those named in the decedent's will (if the decedent had a will) or by law, if the decedent died without a will. Generally, if a domestic partner dies without a will, or fails to name a personal representative in his/her will, the surviving partner has first priority to be personal representative.

Can a domestic partner name someone other than his or her partner to serve as the personal representative of his or her estate?

Yes. Any person can make a will and select whomever he or she wants as personal representative. It does not have to be his or her domestic partner or spouse.

What happens if a domestic partner becomes incapacitated?

If a domestic partner becomes incapacitated during his or her lifetime and is unable to make financial or health care decisions, and if he or she has not signed a legal document giving someone authority to serve as his or her guardian, then the court will appoint a guardian. The court will give priority to a registered domestic partner.

How can a domestic partner avoid having a court appoint a guardian to make financial decisions on his or her behalf in the event of incapacity?

He or she can execute a durable general financial power of attorney. A power of attorney is a legal document giving a third party, an agent, authority to act on behalf of the person signing the document (the "principal"). A durable general financial power of attorney appoints an agent to make financial decisions on behalf of the principal. A domestic partner can sign a durable general financial power of attorney appointing his or her partner (or anyone else) as agent for financial matters in the event of incapacity.

How can a domestic partner designate someone to make medical decisions on his or her behalf in the event of incapacity?

He or she can execute an advance health care directive. An advance health care directive can have two functions. First, it can serve as a power of attorney for health care, appointing an agent to make medical decisions on behalf of the principal in the event of the principal's incapacity. A domestic partner can appoint his or her partner (or anyone else) as agent for medical decisions. Second, it can serve as a "living will," describing the principal's wishes about life-sustaining medical treatment (like CPR or artificial nutrition and hydration), pain medication, organ donation, autopsy, and funeral/burial instructions. If there is no advance health care directive, a court will select a guardian for the incapacitated partner. A domestic partner is given priority under the Act for appointment as guardian. Even if domestic partners do not execute an advance health care directive, it is a good idea for them to inform one another, and their extended families, what their wishes are regarding life-sustaining medical treatment.

Does the law provide any estate tax benefits to domestic partners when one partner dies?

Federal and D.C. laws provide spouses with an unlimited marital deduction for estate taxes. The unlimited marital deduction permits a spouse to transfer an unlimited amount of assets to, or in trust for the benefit of, his or her surviving spouse without causing any estate tax on the transfer. These benefits are not available to domestic partners. Under the federal Defense of Marriage Act (1 U.S.C.A. § 7 and 28 U.S.C.A. § 1738C et. seq.), the federal marital deduction is available only to opposite-sex spouses. However, because D.C. now recognizes same-sex marriages, the D.C. marital deduction is available to same-sex spouses.

Are domestic partners entitled to file joint tax returns?

Same-sex spouses may file joint D.C. income tax returns, just like opposite-sex spouses. Registered domestic partners may also file joint D.C. income tax returns. For federal purposes, under the Defense of Marriage Act, same-sex marriages are not recognized, so same-sex spouses cannot file joint federal income tax returns (and neither can registered domestic partners). This is, however, a rapidly changing area of the law. On February 23, 2011, the Obama administration declared that it would no longer defend the Defense of Marriage Act in court because the administration believes that law to be unconstitutional. Whether the next presidential administration will take the same position is unknown. If that law is determined to be unconstitutional, or if Congress repeals it, it may significantly affect the federal tax treatment of same-sex spouses.

Are there things a domestic partner can do by way of estate planning to reduce taxes on his or her estate after death?

A domestic partner with significant assets may be facing an estate tax. The federal estate tax exemption for decedents dying in 2011 or 2012 is $5 million. Assets in excess of this exemption will be taxed at 35%. D.C. imposes an estate tax on estates in excess of $1 million, at a rate between 5.6% and 16%. Anyone with a large estate should see an estate planning attorney. Estate tax planning for domestic partners and same-sex married couples will be different from estate tax planning typically recommended to opposite-sex married couples. There are some tax-saving techniques that may be appropriate. An estate planning attorney will review the domestic partner's assets and how they are titled, consider his/her goals and objectives, and recommend a comprehensive plan.

What estate planning documents should domestic partners have in place to prepare for death or incapacity?

Each partner should sign the following estate planning documents:

• Last Will and Testament (or Revocable Living Trust and "Pour-Over" Will);
• Durable General Financial Power of Attorney;
• Advance Health Care Directive;
• HIPAA Release Authorization Form; and
• Designation to Make Arrangements for Disposition of Remains.

In addition, each partner should complete beneficiary designation forms for his or her retirement accounts and life insurance policies. A domestic partner with children should also consider designating a standby guardian.

How can a domestic partner appoint a guardian for his or her minor child in the event of his or her death or disability?

A parent can designate a guardian to care for his or her minor child upon his or her death by appointing a guardian in his or her will. To appoint a guardian to care for a child in the event of a parent's incapacity, the parent can sign a designation of standby guardian. The appointed guardian may be the surviving domestic partner, or it may be some other person. Under normal circumstances, the guardian appointed by one parent in his or her will or designation of standby guardian, does not supersede the rights of a child's other parent to act as guardian of the child. However, it is a good idea to plan for the possibility that the child's other parent may be deceased or unavailable.

What type of planning should a domestic partner consider if he or she has children from a prior relationship?

A domestic partner who has children from a prior relationship may want an estate plan that balances the interests of his or her children with the interests of his or her surviving partner. For example, he or she may wish to provide for the support of a surviving partner, but may want to decide where his or her wealth will go after the death of the survivor. For example, he or she may want his or her wealth to go to the children of the prior relationship. One option is a trust for the surviving partner for his or her remaining lifetime. Upon the surviving partner's death, the trust would terminate and the remaining assets would be distributed to the children.

What if a home is owned by only one domestic partner and the owner wants it to go to his or her children upon his or her death, but he or she also wants the surviving domestic partner to be able to live in the home?

The owner of the home can consider a trust to hold the home for the benefit of the surviving partner for his or her remaining lifetime. The trust could provide that the surviving partner has the right to live in the residence, rent-free, but that he or she would be responsible for payment of maintenance expenses and property taxes. Upon the death of the surviving partner, the trust would terminate and the home (or the proceeds from its sale) would be distributed to whomever the original owner chooses.

How is a registered domestic partnership dissolved?

Domestic partners may terminate their partnership by jointly filing a termination statement with the Mayor of the District of Columbia. Alternatively, one partner may terminate the partnership by filing a termination statement and serving it on the other partner. There are several methods of serving someone with legal papers. The 2006 Act does not specify which methods are acceptable to terminate a registered domestic partnership. The safest course of action is to serve the other partner in the same manner that a suit for divorce is served, by one of the following methods:

• Using a private process server to personally deliver the papers to the partner;
• Using a private process server to deliver the papers personally to someone else who is living at the home of the partner and who is old enough to understand the importance of giving them to the partner ("a person of suitable age and discretion"); or
• Mailing the papers to the partner by certified mail, restricted delivery, return receipt requested.

The Act does not say when the partner must be served. The safest course of action is to serve him or her immediately after filing the termination statement.

The Act provides that the termination is effective six months after the filing of the termination statement.

How does a partner make his or her claim to equitable division of partnership property when a registered domestic partnership is dissolved?

Equitable distribution is a scheme for dividing up property accumulated during a marriage or domestic partnership. A former domestic partner can file suit in D.C. Superior Court upon termination of the partnership and ask for equitable distribution of partnership property in the same manner that a spouse can ask for equitable division of marital property.

What is domestic partnership property?

Property is anything of value, including real estate, stocks, bonds, cash and bank accounts, retirement benefits and IRAs, a business or professional practice, motor vehicles, furniture and household items, art, antiques, collectibles, etc. The definitions of "separate property" and "partnership property" in a domestic partnership are parallel to the definitions of "separate property" and "marital property" in a marriage. Separate property is defined as:

• Property acquired prior to the partnership, including appreciation in value on that property, provided the property remains separately titled;
• Property acquired during the partnership by inheritance or by gift from a third party, and any appreciation on that property, provided the property remains separately titled;
• Separately titled property acquired in exchange for other separate property;
• The portion of retirement benefits earned prior to the partnership or after the termination of the partnership; and
• Property that a valid agreement declares to be separate property, regardless of how it is acquired or titled.

Partnership property is all other property acquired during the partnership, including:

• All property (e.g., a house, a bank account, stocks and bonds) titled in a survivorship form of title;
• Wages and other compensation earned during the partnership;
• Property acquired with other partnership property (e.g., real estate, artwork, or stocks and bonds purchased with compensation earned during the partnership);
• A business or professional services practice started and built during the partnership;
• The portion of retirement benefits earned during the partnership; and
• Property that a valid agreement declares to be partnership property, even if it started out as separate property.

Does partnership property include property acquired by partners who registered before the 2006 Act became law?

One question that the 2006 Act does not answer is how it applies to persons who registered as domestic partners prior to April 6, 2006 when the Act expanded the rights of partners to include the right to equitable distribution of property. Do partners who registered at a time when the law provided them with only limited property rights now have all the expanded rights of the 2006 Act? Do those rights apply to property acquired during the partnership but before the 2006 Act took effect? The law does not yet provide an answer to these questions. In the meantime, partners can avoid uncertainty byentering into a domestic partnership agreement that clearly states their intentions regarding division of property in the event of termination of the partnership or the death of a partner.

How are the rights of partners to equitable division of partnership property carried out?

Most couples who divorce or dissolve a domestic partnership negotiate a settlement of their property claims and enter into an agreement confirming their intentions. For couples who are unable to agree, a judge of the Superior Court will determine a fair and equitable division of partnership property. An equal division of property is not automatic. The court must consider a list of factors, the same factors that apply to division of marital property, including:

• Duration of the partnership;
• Age, health, occupation, vocational skills, and employability of each partner;
• Amount and sources of income for each partner;
• Assets and debts of each partner, including each partner's separate property;
• Each partner's obligations from a prior marriage or domestic partnership;
• Provisions for custody of minor children;
• Each partner's increase or decrease in income as a result of the partnership or the duties of homemaking and child care;
• Whether division of property will be instead of, or in addition to, support payments (alimony);
• Each partner's opportunities for future acquisition of property;
• Each partner's contributions to the education of the other, to acquisition of property, and to the home and family, including nonmonetary contributions;
• Circumstances leading to the estrangement; and
• Tax consequences.

The trial judge has a great deal of discretion to decide what is fair using the factors above. Like married couples facing divorce, domestic partners will benefit from staying out of court and entering into a negotiated settlement that avoids the high cost and uncertainty of putting their fate in the hands of a stranger.

What about pension rights or rights to a retirement plan benefit when a partnership ends?

One way in which domestic partners are treated differently than married persons in the division of property at dissolution of the relationship is in the area of retirement benefits. For opposite-sex married couples, federal law permits a court to order the administrator of a retirement plan to make a direct payment of pension benefits and survivor benefits to a former spouse after divorce. D.C. government plan benefits can also be paid directly to a former spouse under a court order. The 2006 Act does not provide similar rights for former domestic partners of D.C. government employees. D.C. law has no power to modify the provisions of federal law in order to expand the rights of domestic partners. What this means for partners who are terminating their partnership is that, while their retirement benefits earned during the partnership will be partnership property for purposes of equitable division, the court cannot order a plan administrator to pay a share of these benefits directly to the former partner. The judge can take these assets into account in dividing up the partnership assets as a whole. The court may order other assets to be transferred to a partner to make up for the fact that the court is powerless to order the division of the retirement plan benefits.

What rights do former domestic partners have to support payments (alimony) after the partnership ends?

The 2006 Act amended the alimony laws of D.C. to include domestic partners. As a result, the Superior Court may consider a claim of a partner for alimony using the same rules it uses to decide whether to grant alimony to a spouse or former spouse. When there is a significant disparity in income, or when one partner has made career sacrifices to promote the business interests or career of the other, or to be primary caretaker for children, he or she may have a viable claim for support when the partnership terminates. The court may award indefinite alimony, meaning alimony that has no specific ending point other than death, or it may award support for a fixed period. The court considers the following factors in deciding whether to award support, how much, and for how long:

• Ability of the party seeking alimony to become self-supporting and the time necessary to obtain sufficient education or training to do so;
• Standard of living established during the partnership;
• Duration of the partnership;
• Age, physical and mental condition, financial needs and resources of each partner;
• Ability of the partner from whom support is sought to meet his or her own needs while meeting the needs of the other partner; and
• Circumstances that contributed to the estrangement.

A partner who believes he or she has a right to alimony can file suit in D.C. Superior Court making a request for an alimony award. This request should be joined in the same suit as a request for equitable division of partnership property.

Are there tax issues that partners should be concerned about when terminating a partnership and dividing property or paying support (alimony)?

Yes. Partners who are going to be transferring cash or property between themselves, or selling property, to carry out a division of their partnership property should consult their accountant to make sure they understand the tax consequences of the transaction. Similarly, when one partner is going to pay support (alimony) to the other, or pay expenses on the other partner's behalf to a third party to provide financial assistance upon termination of the partnership, the partners should consult an accountant before finalizing an agreement or court order. Income tax rules applicable to alimony payments made by ex-spouses do not apply to domestic partners.

Are domestic partners entitled to enter into a contract predetermining their rights when the partnership ends at death or dissolution?

Yes. The 2006 Act amended the Premarital Agreement Act to include domestic partners. As a result, domestic partners have the right to enter into a written agreement prior to registration that resolves in advance what property rights a surviving domestic partner will have upon death and what support (alimony) and property rights they will have in the event the partnership is dissolved. The criteria for validity are the same as for premarital agreements:

• The parties must be legally competent to enter into a contract;
• The agreement must be entered into voluntarily;
• The agreement must be in writing and signed by both parties; and
• If the terms of the agreement are extremely unfair to one party, the party seeking to enforce the agreement must have provided a fair financial disclosure or must prove that the other party had adequate knowledge, or the disadvantaged party must have voluntarily and expressly waived financial disclosure.

Parties who wish to do so may enter into an agreement prior to registration, or they may enter into the same kind of agreement after registration, that determines in advance how they will divide their property in the event the partnership is dissolved. They may agree, for example, that each partner will keep whatever he or she earns and titles separately and that they will share equally all property that is jointly titled. Or they may decide that each partner will keep separate property and that they will share partnership property (including compensation earned during the partnership). There is no single correct type of agreement. Partners must decide for themselves what is right for them.

A common problem that partners may wish to address in an agreement is how to treat their home. One partner may own a home that the parties intend to use as their principal residence, or both partners may contribute cash to buy a new home but one contributes more than the other. They may wish to title the home as joint tenants with right of survivorship or as tenants by the entirety so that it will pass to the surviving partner automatically when one of them dies. They may also wish to recover their separate contributions to the acquisition of the home if the relationship does not work out as hoped. An agreement allows the partners to accomplish both results. It can provide specifically for what rights a surviving partner will have in the home. It can also determine, in the event of dissolution, what rights each partner will have when the property is sold, or the agreement may provide a mechanism for one partner to buy out the other's interest in the event of dissolution.

What effect does the 2006 Act have on custody and support of children?

The 2006 Act did not change prior D.C. law regarding custody of or support for minor children of the parties. D.C. law permits domestic partners to adopt and requires that the children of unmarried couples be treated the same for custody and support purposes as the children of married parents.

What rights do out-of-state registered domestic partners have in the District of Columbia when the partnership is terminated?

This is an area where there are many questions and few answers. The law permits a couple from Pennsylvania, for example, to register their domestic partnership in D.C. The law does not specify whether a member of that couple can file suit in D.C. Superior Court for a division of partnership property if they terminate the partnership and neither partner lives in the District at the time suit is filed. In the case of a married couple, one spouse must have been a resident of D.C. for six months prior to filing for divorce. If the courts decide to treat domestic partners similarly, they will not allow a domestic partner equitable distribution suit unless one of the partners is a D.C. resident.

Does the 2006 Act provide all the protection domestic partners need for their property and support (alimony) rights in the event the relationship fails?

No. There remain many gaps in the legal protections afforded domestic partners. Because a D.C. domestic partnership may not receive legal recognition in another state, if a partner moves out of D.C., rights under the 2006 Act may be lost. Persons considering registering a partnership should also consider entering into a partnership agreement (like a premarital agreement). Partners can benefit from agreeing in advance how they will divide their property if the relationship fails. Dissolution can be costly and difficult when parties are unable to agree on what is a fair division of their property or whether one partner is entitled to support. Negotiating those issues while experiencing the pain of a failed relationship can be time-consuming and expensive. Much of the cost anduncertainty can be eliminated if parties enter into a written partnership agreementin advance, when they are not under the stress of a failing relationship.

What options do domestic partners have to resolve disputes between them?

Going to court to resolve a conflict can be expensive and emotionally draining. There are alternatives to litigation. A couple can agree to go to mediation or binding arbitration. A newer form of alternative dispute resolution is known as collaborative law. The collaborative approach attempts to achieve a resolution that is acceptable to both parties in a more family-friendly way than the traditional court-based approach. In the collaborative process, the focus is on reaching a settlement. The parties may choose to use other professionals with specific expertise, such as a financial advisor or child specialist, to provide them with the help they need to deal with legal, financial, parental, and emotional issues. The process is generally conducted in face-to-face meetings with parties and their lawyers, and other professionals as appropriate. The participants identify issues to be resolved and come up with options. Like married couples, partners can benefit from agreeing in advance how they will resolve disputes between them, including in the event of a dissolution of their partnership, and can include alternative dispute resolution provisions in their domestic partnership agreement.