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Domestic Partners Estate Planning in Virginia

Nathan R. Olansen

If you and your significant other are unmarried but live together, it is essential to know that you are not receiving the full protection and benefits provided by federal law to married couples. As such, without a will or trust in place naming your partner as a beneficiary, it is likely that should something happen to you, they will receive nothing due to Virginia law. You and your partner will not have the same gift and estate tax benefits as married couples who can confidently transfer their assets tax-free to each other. If you and your partner own multiple houses or significant assets, consider talking with one of our knowledgeable estate planning attorneys to learn the most tax-efficient way to pass property to your spouse, protect that property from creditors, and provide for your spouse’s future.

What is a Domestic Partnership?

Couple smiling

A domestic partnership is for opposite-sex or same-sex couples who do not plan to marry but want similar benefits to their married counterparts. To be legally recognized, however, a domestic partnership in some states and municipalities must file specific documents at a government office or courthouse, such as a declaration of domestic partnership. Other locations may require a specific type of agreement to receive domestic partner benefits.

Yet, while this alternative to marriage is common today, it is essential to note that Virginia does not recognize a domestic partnership or civil union any longer due to the Supreme Court decision in the case of Obergefell v. Hodges. This decision led to a federal law making same-sex marriage legal. As such, the Commonwealth of Virginia determined that it would no longer recognize legal domestic partnerships.

Virginia also does not allow for common-law marriage either. This type of marriage is usually defined as two people living in cohabitation together and considering themselves married without going through the formal marriage process. Therefore, although you may be in a fully committed relationship, it will not be recognized as legally binding in Virginia.

One area where domestic partnerships are still recognized nationwide is under the Affordable Care Act, colloquially known as Obamacare. Domestic partners can receive health insurance coverage, although some rules must be met in order to qualify. Essentially, you must either have one or more children together or be able to claim a partner as a tax dependent with the IRS. Simply living together is not enough to qualify.

Why You Need a Will If You Are in a Domestic Partnership

Creating a will or trust is essential in any type of relationship, but especially in a domestic partnership. Laws of descent and distribution will not apply to a partner in the same way as a surviving spouse, so you need to express your wishes in a legal document.

If you are in a domestic partnership and your partner dies without a will, Virginia law will not consider you an heir or beneficiary. You will not inherit anything, regardless of the deceased’s wishes.  You will not receive anything; not even financial support or basic living expenses.

While Virginia no longer recognizes domestic partnerships, those unmarried couples who wish to protect each other if one partner dies, must create a will outlining how assets are to be distributed and name their partner specifically.

What Happens If You Do Not Have a Will in Place?

If you do not have a valid will in place, you are considered to have died intestate. Dying intestate in Virginia means the Commonwealth’s statutory rules will determine who has rights over your estate and how your assets will be distributed during the probate process.

Virginia law provides for the order with which an intestate individual’s estate will be distributed, which includes the following:

  • If no surviving spouse exists, all assets will pass to any children or their descendants (special rules exists for children of a previous marriage).
  • If the deceased has no children, estate assets pass to the parents or the surviving mother or father.
  • If parents are deceased, the assets pass to any surviving siblings and their descendants.
  • When no heirs fit within this list, Virginia statutes set out further contingencies.

As you see, the eligibility of a non-married partner is not even considered.

Am I Liable for the Debts of My Partner?

Often, a significant concern is whether or not a surviving partner is liable for the deceased’s debts. In Virginia, unless you are married and the debt incurred during your marriage, you are not responsible for paying your partner’s outstanding debts.

The exception is if domestic partners have expressly undertaken responsibility for paying a specific debt. An example of this exception is if you voluntarily co-signed for a loan or other debt with your partner or have joint accounts in which debt has accumulated.

How to Ensure Your Partner Can Access Your Estate

Couple looking at paperwork together

For a surviving partner to receive access to the deceased partner’s estate, there must be a will or other legally recognized estate planning document in place. If you are unmarried but still want to establish some of the same post-mortem benefits as if you were married, you must take certain actions. We recommend the following.

Create a Will and Name Your Partner

Create a will that names your partner as the heir to assets and properties you wish them to inherit should something happen to you. You can list specific properties, specific classes of properties, or make formula-based allocations of items that will go to your partner within your will. You can also include terminology to cover assets you might forget or do not yet own. A will also allows you to name an executor to administer your estate, select a guardian for a minor child, and express your funeral and burial wishes.

Make Your Partner the Beneficiary of Retirement Accounts and Life Insurance

For all retirement accounts, specifically name your partner as your beneficiary so that they will have access to the accounts immediately following your death. With this, the assets in these retirement accounts will not have to be part of any probate process but will quickly pass to who you choose. You will also want to name a beneficiary for all life insurance policies, and you should also consider adding a payable on death (POD) designation to any bank account for the same reason.

Create a Joint Tenant with Right of Survivorship

By creating a joint tenancy with the right of survivorship, you can structure the property ownership to pass to your partner legally should something happen to you. Domestic partners need to consider this option to gain peace of mind that a loved one will not be required to move out of a shared home, or lose access to a shared financial account.

Set Up a Trust

To create similar legal rights of transferring assets to your partner tax-free, as occurs automatically with married couples, you may need to set up a trust. There are different types of trusts available, and an experienced trust and estate planning attorney will be able to explain the benefits of each and help you find one that is right for your situation.

Need Help with Your Estate Plan?

Planning and creating an estate plan will provide protections for those you love and also give you peace of mind. Whether you are in a domestic partnership or married, you will want to make your wishes known as to how assets will be distributed once you are gone.

At Midgett Preti Olansen, our attorneys have extensive knowledge about legal proceedings and how to create estate planning documents that meet individual needs. We start by getting to know your goals and concerns and identifying issues you may not be aware of and where you need guidance.

We provide both basic and advanced estate planning for clients in Northeast North Carolina, Virginia Beach and throughout the Hampton Roads area, including Norfolk, Chesapeake, Suffolk, Hampton, Newport News, and the Eastern Shore.

Whether you and your partner have several financial assets, properties, or vehicles, the attorneys at Midgett Preti Olansen are ready to help. We can custom prepare a will to meet your needs, and create other estate planning documents to minimize taxes, designate beneficiaries and guardians, set up a trust, establish a financial power of attorney, and create a health care power of attorney,

Protect Your Loved One

same sex couple standing in front of their home smiling

When it comes to protecting your loved one after you are gone, it all starts with estate planning and expressing your wishes as to the distribution of assets and more. The estate planning attorneys with Midgett Preti Olansen have years of experience in Virginia helping clients like you. We can provide you with the legal advice, guidance, and assistance you need. Wherever you are in the Hampton Roads area, call our law office in Virginia Beach today at 757-687-8888 to schedule a consultation. You can also fill out our online contact form to get started.

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Written By Nathan R. Olansen


Nathan R. Olansen is a Shareholder in the law firm of Midgett Preti Olansen. His practice is focused on estate planning, probate and trust administration, IRS and state and local tax audit and tax collection cases, as well as individual and entity tax planning, asset protection and a variety of related transactional matters.

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