Settling your domestic affairs through the registry

Posted April 20, 2012, at 4:19 p.m.
Brent Slater
Brent Slater

Our personal finances are something that occupy us all while we’re living — or at least they should — but we also need to consider what happens when we die and leave others behind.

Maine statutes provide certain protections for spouses, heirs, etc., but there are other alternatives for people who fall into different circumstances. At a recent lunch with some colleagues, I learned none of them were aware of one interesting part of Maine law — the domestic partner registry.

Consider, if you will, the hypothetical case of Mr. and Mrs. Smith.

Mr. and Mrs. Smith got a divorce. Unfortunately, it became a bitter divorce, and more unfortunately, their two children felt compelled to take sides. They chose to support their mother. After the divorce, neither child ever spoke to Mr. Smith again. Christmas, birthdays and Father’s Day all were ignored. To them, their father had ceased to exist.

After the divorce, Mr. Smith began dating and met a lady. Eventually Mr. Smith and the lady moved in together. Because of his experience with the divorce, Mr. Smith had no interest in remarriage.

The couple lived happily together for about 15 years, and then Mr. Smith was diagnosed with terminal cancer. The lady stood by him and cared for him through his final months. At the time of his death, Mr. Smith had a savings account of about $100,000 and a retirement plan worth about $200,000.

When he died, the bank account and retirement plan were paid to his estate, and ultimately paid to his “heirs at law,” who were the children who had not spoken to him for years. The lady who had lived with him and cared for him received nothing.

He could have written a will, but he didn’t. He could have made the lady a joint owner of the bank account and-or beneficiary of his retirement plan, but he didn’t. Still, there is another alternative that was available to this couple, an alternative that isn’t widely known, called the domestic partner registry.

The Maine Department of Health and Human Services maintains a registry where a couple, opposite sex or same sex, can register to become domestic partners, which is defined as “two unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare.” In order to qualify for registration:

• Each partner must be mentally competent and not impaired in a fashion that would prohibit marriage;

• The couple would have to have been legally domiciled together in Maine for at least 12 months prior to registration;

• Neither partner can be married to, or in a domestic partnership with, another person; and

• Each partner must be the sole partner of the other and expect to remain so.

To become registered domestic partners, a couple must jointly file with the Office of Data, Research and Vital Statistics a declaration under oath that identifies each individual, contains an assertion that they meet the qualifications enumerated above, and a warning that registration may affect property and inheritance rights. The simple, one-page form is available at most municipal offices, and all Probate Courts.

A registered domestic partnership may be terminated by the marriage of either partner, filing a notice signed by both that the partners consent to the termination, or a notice that one of the partners was served in hand with a notice of intent to terminate the partnership. There are no lawyers, no judges, no waiting period and no court appearances.

This is not to say that registering as domestic partners bestows the same benefits as a legally recognized marriage. For example, a spouse who is not provided for in a deceased spouse’s will has the right to elect to take the share of the estate he or she would have taken if the decedent had died without a will. No such right exists for registered domestic partners. Real estate transfers between spouses are exempt from real estate transfer tax. Transfers between registered partners are not. There is no provision for the disposition of jointly acquired assets, custody and support of children, or separate support for either partner.

Registration does allow a surviving registered partner to claim a share of a deceased partner’s estate who dies without a will. Registered partners are included in the definition of heirs in the Maine Probate Code, and have custody of the remains of a deceased partner. They may be eligible for coverage under a partner’s health insurance, and have access to vital records such as birth, marriage and death records. They have a priority for appointment as personal representative (executor) of a deceased partner’s estate, and priority for appointment as guardian for an incapacitated partner.

A registered partnership isn’t right for everyone. There are no vows, no religious or other prescribed ceremonies, and some rights and obligations of legal spouses are omitted. Registration is, however, an option that many people don’t know exists, and may want to explore.

Brent R. Slater is an attorney with Gross, Minsky & Mogul in Bangor. He has practiced law for 38 years and focuses on business and estate planning.

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