Grieving individuals may find themselves in a legal dispute following the death of their beloved partner if they do not take proactive steps to protect their shared and separate estates. For many couples, a committed and long-term relationship does not include a legal marriage. When this is the case, it is critical to understand the standards and approaches the state they live in takes regarding distribution of assets following the death or disability of one of the parties. In some states, courts will use terminology such as “nonmarital domestic relationship” or “unmarried cohabitation” to describe such relationships. “Domestic Partnership” is also used liberally, but in many states, including Oregon, it has a narrowly construed statutory definition that includes only registered same-sex couples who chose state registration before same-sex marriage was legal.
This is especially important for couples that move from state-to-state due to personal or professional obligations. They may encounter vastly different standards for property distribution from one state to the next. Moving across a border can be the difference between an “equitable and fair” distribution of assets or the application of a state’s strict legal guidelines – which can lead to radically different results.
Consider the state-to-state differences
The state of Washington is among the more liberal states in recognizing unmarried “love” partnerships. Called the “committed intimate relationship” standard, Washington may recognize your relationship as nearly identical to a marriage on death. On the other hand, no matter what facts apply, in Idaho, the surviving partner who lived together in an informal marriage has no rights to inherit or split assets owned by their partner in a breakup. Arizona is like Idaho, while Oregon treats the relationship like a business partnership and splits assets strictly. In Utah, their Supreme Court found that an individual receiving alimony from a prior marriage might lose that alimony if they live with someone in an intimate relationship and share assets as if they are married. So many of our clients make decisions based on the anecdotal rumors from friends and family, or how they understand the law of their state. They choose not to be married because marriage is a state institution, without realizing there are some automatic benefits associated with the institution of marriage. They can be sorely disappointed and inconvenienced when their partner dies. At Wool Landon, we hate to find ourselves in the uncomfortable position of having to tell someone they have to move out of their home because their partner’s children inherit it under Oregon’s rules of intestate succession. They may be left with nothing to show for the cohabitation. If you have a cohabitation agreement written by a law firm like Wool Landon which has experience with cross state border planning, your beloved partner will remember you with love and joy rather than anger and disappointment.
Importance to LGBTQ+ community
Historically, legal alternatives to marriage were the only tools available to the LGBTQ+ community. Before the Supreme Court decision in Obergefell v. Hodges, common law contract doctrines for unmarried cohabitation, followed by modern state-sanctified statutory domestic partnership laws, were the only way to reliably convey the assets of a cohabitating same-sex couple. These doctrines and laws still vary from state to state.
In 2015, the US Supreme Court in Obergefell found that this was an unjustified infringement of the fundamental right to marry. More recently, however, certain justices have shown hostility towards the Obergefell decision, and signaled the possibility that the Supreme Court may revisit the recognition of same-sex marriage. It is vitally important to develop a relationship with a trusted estate planning professional to ensure that each partner’s goals and interests are protected as this area of law and its protections may evolve.
What to do if a dispute arises
If you or someone you know has lost a loved one and are unsure of the rights and protections that apply to your situation, particularly if you think your loved one’s estate will be contested or in dispute, you need an experienced litigator on your side to assess the situation and ensure you get what you are entitled to. It is important not to wait, as time is often of the essence in estate disputes.