DOMA Struck Down By SCOTUS: What Does This Mean for Domestic Partners’ Estate Planning?

Albertina D. Lombardi      Jul. 31, 2013

With the Supreme Court’s strike down of the Defense of Marriage Act in United States v. Windsor, it is now left to individual states to decide whether same-sex couples can be legally married. Although same sex couples living in states which recognize such unions as “marriages” will generally gain access to benefits available to recognized married couples, it is questionable whether these benefits apply to same sex couples living in states, like Pennsylvania, which have not recognized such marital status for same-sex. A lawsuit has been filed challenging Pennsylvania’s ban on same-sex marriage, but for now, the issue is undecided.

On July 29, 2013, the US District Court for the Eastern District of Pennsylvania ruled that in reliance on the Windsor decision, federal law required the payment of death benefits from a profit-sharing plan (of an employer headquartered in Philadelphia) to the survivor of a same-sex couple who had married in Canada in 2006 and lived and worked in Chicago, stating that under federal law the term “spouse” includes same-sex spouses in “otherwise valid marriages.” However, it is currently uncertain as to the ongoing impact of the Supreme Court’s ruling upon state law issues. Therefore, at the present time, the only way for both same-sex couples and heterosexual unmarried, committed couples (“Domestic Partners”) in Pennsylvania to ensure that their loved ones will be empowered with the estate planning rights ascribed to “married” spouses is to put their wishes in writing and execute the proper estate planning documents.

The following matters/documents are important for any couple, but are even more necessary for Domestic Partners. This is because the default laws regarding Domestic Partners and estate administration may not protect the interests of a surviving Domestic Partner or allow one Domestic Partner to make important decisions for another person during their lifetime:

  • Healthcare Power of Attorney – Appointing your Partner as your healthcare agent allows him/her to make decisions regarding your medical care in the event of your incapacity.
  • Financial Power of Attorney – Appointing your Partner as your financial agent allows him/her to assist in managing your finances, sign checks, pursue litigation on your behalf, or make other decisions regarding your personal business affairs.
  • Will – In Pennsylvania, without a will, assets titled in the name of a deceased individual will pass to blood relatives. A will can provide that your assets will pass, instead, to your Partner.
  • Funeral Arrangements – Often funeral homes allow only “family members” to make such arrangements without an express agreement stating otherwise.
  • Guardianship – A written document is necessary to ensure that a Partner who is not already a parent or legal guardian of a child will become the legal guardian in the event of a parent’s death.
  • Proper Titling of Assets – Certain assets, if properly titled, will pass at death by operation of law (outside of probate) to the surviving Partner.
  • Proper Titling of Beneficiaries – Life insurance policies, retirement accounts and other employee benefits should list your Partner as a beneficiary.

The documents necessary for Domestic Partners are the same documents used by married couples and therefore are valid even if a heterosexual couple decides to marry or the laws regarding same-sex marriage in Pennsylvania change. Proper estate planning is important for both Domestic Partners and married couples and such documents should always be drafted with the assistance of an attorney.

This article was researched with the assistance of Nicole Lipsky, a summer associate of the Firm. This blog post has been prepared and published for informational purposes only.  None of its content should be construed as or relied upon as legal advice.  Therefore, no one should act or refrain from acting based on its content.  The content is not a substitute for competent legal advice.  For legal advice or answers to specific questions, please contact one of our attorneys.  Information provided by our attorneys should only be considered legal advice after a formal attorney-client relationship has been established with our law firm and you and confirmed in writing by one of our attorneys.


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