Concerned about entering into a Domestic Partnership

Dear Len & Rosie,

My partner and I are thinking about registering for a domestic partnership. I am female and age 64. I plan to draw my full Social Security benefit at age 66. If I die will he be able to collect half of my benefits? Also, my partner’s father has let us live in a home owned by him and his late mother.

He is keeping the house in his name for tax purposes under Prop 13 and says it is “all in his will” so my partner will get the house when he passes away. I am nervous that if my partner passes away before his father I may not have a place to live. Can’t my partner have his name put on the deed now? That way if we are domestic partners I would be entitled to claim his part of the property? Thank you so much.

Nora

Dear Nora,

California’s domestic partnership law was enacted in 1999, but initially it did not provide for much more than a guarantee of hospital visitation rights for registered partners. Same-sex couples may register at any age. Heterosexual couples may register only if either or both partners are age 62 or older. Over the years, the Legislature has expanded the benefits of domestic partnership to the extent that it’s the same as marriage under California law.

But a domestic partnership isn’t marriage and has no status under federal law. If you register as domestic partners, you can’t collect off of one another’s Social Security wage and earning history. If you want Social Security benefits from your partner, the two of you will have to get married.

As far as the home goes, it’s not owned by your partner. It’s up to his father to deal with it within his own estate plan. He could give the home to your partner, if he wants to, but you can’t force him to do so. If he does transfer the property, you shouldn’t be added to the deed unless you and your partner are married or have registered as domestic partners with the California Secretary of State. This is important, because putting you on the deed before marriage or registration may result in a property tax reassessment under Proposition 13.

So why hasn’t he given the home to your partner? It’s hard to say. He may not trust his son. He may not want you to get it. He may be a man with Depression Era Syndrome who isn’t willing to give up anything before his death. What we can tell you is that once your partner gets the property, it will still be his sole and separate property that he doesn’t have to leave to you.

You have good reason for concern. We have spoken to many people who face a bleak financial future because they naively stuck with spouses, domestic partners, or friends who were not willing to provide for them. It is perfectly acceptable for you to stand up and ask for what you need, and cut your losses if you don’t get it. What you need to do is to have a frank discussion with your partner. Let him know that you are willing to enter into a permanent relationship, but only if he’s willing to provide for your future.

Len & Rosie

Getting married or divorced is always a reason to consult with an estate planning attorney to make sure that your affairs are in order

Dear Len & Rosie,

My friend’s husband passed away three months ago. She and her husband got married only recently but had lived together for 30 years. He owned the house in his name alone. Unfortunately, there was no will. He has a daughter from a previous marriage who is trying to take the house. Additionally, she’s been told she’s not entitled to her husband’s Social Security. Is there anything I can do so that she can keep the house? I just can’t believe his daughter is entitled to take something that was never hers.

Debbie

Dear Debbie,

Your friend’s husband died without a will. That means his home and everything else in his estate shall pass by intestate succession -“intestate” means “no testament” as in “Last Will & Testament.” Intestate succession is the default estate plan created by the California Legislature. It’s their best guess as to how most people would want their assets distributed when they die. It’s a shame our government declined to disinherit wicked daughters from prior marriages.

Your friend will inherit all of the community property, but there probably isn’t any, as her husband was probably already retired when they got married. She will also inherit either one-half of his separate property, if her husband had only the one daughter, or one-third of the separate property if he had more than one child. So at best she will own half the home.

The only way your friend would be entitled to more than that is if she could prove that her husband promised to leave her everything, or at least the home, and that there’s a written contract or she acted to her own detriment in reliance of her husband’s promises. Please understand that this is a hail mary pass and isn’t likely to succeed unless she has a lot of evidence in her favor.

Your friend’s husband could have avoided this problem by making a will, and he could have even done it for free by downloading the California Statutory Will form from the State Bar web page at www.calbar.ca.gov.  If he had wanted to protect his daughter too, he could have created a trust that gave his wife the right to live in the home until her death. But it’s too late for that. The best your friend can do now is to make a deal with her husband’s daughter. Maybe she’ll be willing to forgo selling the home now in return for inheriting the entire property upon her step-mother’s death.

As for Social Security, the rule is that a couple has to be married for at least one year for a surviving spouse to collect a pension off of the deceased spouse’s earning record.  If your friend’s husband died before their first anniversary, there’s nothing that can be done.

We hate to be the bearers of such bad tidings but we do so in the hope that readers of this column will take note. Nobody wants to spend money on lawyers, but with regards to estate planning, saving money in the short term frequently costs more money and creates more problems in the long term. Getting married or divorced is always a reason to consult with an estate planning attorney to make sure that your affairs are in order. If your friend and her husband had done that, your friend wouldn’t be in such a trouble today.

Len & Rosie