Domestic Partners

Domestic partnerships in Texas are not specifically recognized at this time.  Companies in Texas may have internal recognition of domestic partners that allow adding a partner as a dependent, but Texas law does not provide any distinct legal rights to domestic partners.  Despite the fact some may argue against the lack of recognition as a married couple, it actually does provide some additional flexibility when doing estate planning for gay couples because the forms created are often based on contract theories.

There is a strong argument that domestic partners need a last will and testament form (and other documents) more than single individuals or married couples because the descent and distribution statutes that apply to single individuals also applies to domestic partners.  For example, a single person dying without a will and with no children will have their estate distributed to the parents if both are alive at the time.  The same would apply to a domestic partner dying without a will and with no children if his or her parents were both alive.  The single person may accept this gifting plan because there isn’t a significant other in their life, but the domestic partners certainly will not feel that way.

If you are in a domestic partnership you have to take the time and make the effort to do at least the following things that will help your intentions be fulfilled when you die:

• Make a will!  Your first priority should be creating a will that clearly outlines who receives your estate, who executes the terms of your will and, if you have children, who will be the guardian of your children
• Review your beneficiary designations on life insurance (purchased through an insurance company and/or through your work), retirement accounts (401k, IRA), brokerage accounts (E*Trade, Merrill Lynch, Charles Schwab, etc.) and bank accounts.  Whatever you designate on these accounts will control their disposition, despite what you may have in your last will and testament!
• If you have children, make your will using the Secure Wills™ website and then find a good Parenting Agreement specifically designed to outline the rights, duties and obligations of you as parents should either of you die, become incapacitated or in the event there is a breakup of the domestic partnership.  Do this in advance before the problem arises.  The Secure Wills™ website will have such an agreement and work is in progress so please check back with us periodically.
• You may consider handwriting a letter to your loved ones discussing your relationship, your partner and how you made your decisions when you wrote your last will and testament.  It is not legally binding, but sometimes a personal explanation can help family members understand your will and actually hear you say what you want to happen.  This is particularly important when you have family members who may not know you are in a domestic partnership, and it will certainly provide support for your partner when you are gone.
• You must put in place a financial power of attorney, medical power of attorney and HIPAA Release and Authorization so your partner will have the ability to make financial and medical decisions for you in the event you cannot do so.  The forms used for single persons or married couples are the same as would be used by domestic partners. The entire set of forms is under construction at the Secure Wills™ website and the expected release is in January of 2010.  Please check back with us or send your e-mail address to customerservice@securewills.com and we will contact you when the forms are available.