DOMESTIC PARTNERSHIPS
Unmarried parties who acquire real estate or personal property together
certainly have the right to enter into contracts setting forth their respective
interests. Likewise, there is nothing to prevent unmarried parties who have
business relationships together from entering into business agreements to govern
the operation of those enterprises. The fact that the parties live together is
not essential to the validity of such agreements, unless there is over reaching.
The best way to ensure agreements are enforceable is to have competent lawyers
draft the agreements. If you do it on your own, consider videotaping the mutual
signing of the agreement.
It is possible for unmarried parties to enter into a binding agreement
similar to a "prenuptial agreement" setting forth the waiver of future claims to
property or even support.
In many states (including Kentucky), unmarried domestic partners may enter
into an agreement that creates property or support rights which are not based
solely on each party's direct financial contribution to a specific asset. If one
party makes a significant financial contribution to an asset such as a house
while the other party's contribution is not financial (such as being a
homemaker), they may make an agreement that creates each party's respective
rights and duties.
It was this latter type of agreement that courts traditionally refused to
enforce because it was thought to promote prostitution. Things changed in 1976
when the California Supreme Court decided Marvin v. Marvin, (1976) 18
Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106]. In that case, the court decided
unmarried cohabitants could enter into valid contracts to share property or pay
support in the event the relationship came to an end. Since then, at least 37
states and the District of Columbia have recognized express cohabitation
agreements as valid, enforceable contracts.
Today, parties who could marry but who choose to live together without
marrying and same-sex cohabitants (who do not have the option of a legal
marriage) should consider entering into a written agreement prepared by an
attorney knowledgeable about such matters which sets out in detail the parties'
respective rights and duties on the matters of property (real or personal) and
support.
Such an agreement should cover all of the parties' property, including
property owned before the relationship began, as well as property accumulated by
either party thereafter (either separately or jointly). It is recommended to
especially specify who gets to keep what in the event of a breakup.
The parties' agreement should spell out how they will divide day-to-day costs
for food, utilities, laundry, housing, etc.
The parties may opt to simply state in their agreement that, if they
separate, each of them will have the right to take immediate possession of their
respective separate property and that all jointly-owned property will be divided
equally. If there is property owned jointly by the parties but not equally, the
agreement should specify a method for dividing it.
Including a dispute resolution method such as mediation or arbitration is
suggested, in which case the parties would include their agreement to resort to
qualified mediator or arbitrator to negotiate a settlement of any disagreements
about the disposition of property.
While an oral agreement between unmarried domestic partners may be valid and
enforceable, litigating such claims is often difficult and expensive. Oral
agreements are usually difficult to prove or disprove and offer poor protection
to the parties. As the old adage goes, "Oral agreements are not worth the paper
they are written on."
 If one person of a married
couple dies, the surviving spouse has certain specific legal rights which may be
enforced against the deceased's estate.
That is not true for unmarried domestic partners. In such cases, unless there
is a valid will or other instrument conveying ownership, the surviving partner
may be left without a home, car, investments, real and/or personal property.
It is strongly recommended that unmarried domestic partners consult with an
attorney to discuss the making of wills, the designation of retirement plan and
insurance beneficiaries and other mechanisms for providing for each other in the
event of one party's death.
The law of Kentucky will not assure an unmarried domestic partner receives a
share of the deceased partner's assets, as it does with married couples.
Any written domestic partnership agreement prepared should address this issue
and specifically address other potential claimants' rights in the event of
death.
The other side of this coin is that such an agreement can also ensure that
the surviving domestic partner's claims against the deceased partner's estate
are limited or a party's children are protected.
An unmarried domestic partner does not have the legal right to make health
care decisions in the event the other partner is incapacitated and unable to
express his/her wishes with regard to medical treatment.
However, through a Health Care Directive and a Living Will, either party can
make known his or her choices in the event of a catastrophic illness or
condition and, further, appoint an individual such as his/her domestic partner
with the authority to make such decisions in such an event.
Such choices can include the use or restriction of artificial respiration and
the administration or restriction of life-prolonging water and other sustenance or drugs intended to abate the patient's pain and suffering.
A durable power of attorney for financial matters can specifically provide
for a party's right to handle matters on behalf of the other partner under
express circumstances such as unavailability or complete mental/physical
incapacity.
In other words, if one partner becomes ill or injured to the extent he/she
cannot communicate or make decisions for himself/herself and the
sick or injured partner had previously appointed the other party with a Durable
Power of Attorney, that party could be permitted to make health care decisions,
write checks to pay bills, dispose of real and/or personal property assets and
otherwise act on behalf of the sick or injured partner. See, also, our sections on
Living Together
and
Gay & Lesbian Couples
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