Two same-sex partners, Wilson and Konou, began a relationship in 2005. In 2006, they became domestic partners. Immediately prior to registering as domestic partners, the couple executed a domestic partnership agreement, in which each of them expressly waived any rights to the property of the other in the event of death, dissolution, or legal separation.
In June 2008, when same-sex couples were permitted to marry in California, Wilson and Konou married. Less than five months later, Wilson committed suicide.
After Wilson’s death, Konou filed a petition with the probate court, seeking to inherit a portion of Wilson’s property as a pretermitted spouse. (See Probate Code § 21610. Note that the statute uses the term “omitted spouse” instead.) Konou argued that the marriage license provided him different rights than what he was entitled to under the domestic partnership.
The court decided that a domestic partnership agreement was essentially the same as a prenuptial agreement. Couples frequently execute prenuptial agreements prior to a marriage. The fact that the couple later married does not invalidate the prenup, or change the parties’ rights to property under the prenup. Likewise, the court held that the domestic partnership agreement was still in force despite the couple’s later marriage.
This case highlights the importance of re-examining your estate plan on a regular basis. It is possible that Wilson and Konou intended to provide for each other later in life, and that they believed that by getting married in 2008, they would be entitled to inherit from each other as if the domestic partnership agreement had never existed. It is also possible that they intended for the original domestic partnership agreement to remain in effect. Either way, a re-examination of their priorities and a discussion about it could have prevented unintended consequences.
If you haven’t re-examined your estate plan lately, it’s a good idea to take another look at it to see if it still reflects your wishes. If you haven’t executed an estate plan at all, particularly if you have a same-sex partner or if you wish to leave your property to those not in your immediate family (nieces/nephews, cousins, friends, charities), you should strongly consider talking to an attorney about setting up an estate plan that will help you achieve your goals. If you like, give us a call and William L. Cates or Amy Howse can assist you with your estate plan.
Author: Amy Howse