Myth– All states recognize common law marriage.
Reality– As of 2021, only eight states still allow common law marriages to be formed, however, Kentucky is not one of them. Therefore, couples who purportedly entered a common law marriage are not offered the same legal rights and protections that legally married couples are provided.
Today, more and more couples are choosing to live together in lieu of marriage than any other time in our history, but are not bound by marriage, civil union, or other legally recognized contract. And, since common law marriage is not recognized in Kentucky, you and your partner would be wise to find a way to protect your assets – and each other – for peace of mind down the road.
There are many statutory protections offered to married couples that just are not offered to the domestic partnership couple. That is why it is critical to consider proper estate planning. Estate planning provides a way for you and your partner to plan your future together and feel secure knowing important decision have been made. This can include medical care, distribution of property and other assets, or even a transfer of ownership of a business upon death.
What if I pass away without a Last Will and Testament?
When someone passes away without a Last Will and Testament, in Kentucky the state governs how one’s assets are to be distributed to their heirs. Unlike a spouse who is entitled to 50% of the estate assets, and potentially the remaining 50%, depending on intestate succession, a domestic partner is entitled to nothing. Additionally, they are not provided for under intestate succession (the deceased has no Last Will and Testament). Therefore, one’s domestic partner will inherit nothing if there is no estate planning providing for same.
What if I pass away with a Last Will and Testament?
Having a Last Will and Testament provides safeguards on your specific intentions upon your death, this legal document gives you the ability to protect and provide for your domestic partner in the manner you choose. Keep in mind, there is a bit of a delay. Under Kentucky law, your Last Will and Testament is required to be validated by the Probate Court. Once probate begins, the estate must remain open for a minimum of six months under Kentucky law before any distributions to heirs can take place.
What if I have a Revocable Living Trust?
Like a Last Will and Testament, a Revocable Living Trust gives you complete control over your assets and ensures your partner is taken care of when you die. The biggest advantage is avoiding the delays and red tape of probate. There are no court or attorney fees after the trust is established. Therefore, your property can be passed immediately and directly to your partner or other beneficiaries.
Handling your real estate
When it comes to real estate, having an estate plan is critical. Under Kentucky law, you and your domestic partner are treated as separate individuals with no rights or responsibilities if the relationship ends or one partners dies. Therefore, before you purchase a home, property, or any significant asset jointly with your partner, it is in your best interest to determine beforehand how the property will be distributed. A little preparation now will protect your rights if your partner dies, or the relationship ends.
If you and your partner would like to own real estate together, joint tenancy is a viable option. In joint tenancy, the ownership is shared equally. When one owner dies, the property automatically extends to the remaining partner. This is termed the right of survivorship.
Joint tenancy is attractive because it is straight-forward, simple, and quick for you and your attorney, and it eliminates probate delays.
Tenancy in Common
Unlike joint tenancy, each owner has a distinct share in the property based on a percentage you choose. This strategy allows more flexibility in the case of death.
Instead of the property automatically going to the remaining partner, you can choose to sell, or bequeath your portion of the property to your heirs, or anyone you like in the form of a will or living trust.
It is important to reiterate under tenancy in common, when one co-owner dies, you do not have rights to their share of the property. Their share becomes part of their estate and will be distributed per the details of the will or state intestacy laws.
You have got options.
With domestic partnerships not having the same protection as a married couple, it is best to contact one of our attorneys who can advise you based on your assets and life situation. Taking care of these issues now can assure your partner is taken care of later. Let’s connect so you can enjoy peace of mind now. Contact us.