When it comes to the new law that outlines the rights and benefits for domestic partners in Wisconsin, attorneys say that at this point there are more questions than answers.
But the addition of Ch. 770 in the Wisconsin Statutes may be encouraging more same-sex couples to explore their options when it comes to estate planning.
According to Krueger & Hernandez attorney Michelle T. L. Hernandez, since same-sex couples became eligible on August 3 to start applying for domestic partnership declarations, she has received a number of calls from people asking about the process.
“I think this could be whole new area for attorneys who implement plans for domestic partners and [handle] the procedure to terminate those partnerships,” she said. “It’s a brand new, hot law.”
More than 400 couples have filed for declarations, which allow same-sex domestic partners to inherit assets pursuant to the state intestacy statute and sue for a deceased partner’s wrongful death.
That’s a small niche so far, said Hernandez, but she expects that as more couples register, they will evaluate whether to change their estate planning documents, wills and trusts to incorporate the benefits of the law.
Clients advised to apply
Madison attorney Jennifer Anne Hannon, a member of the Estate Planning Group at Godfrey & Kahn, is encouraging clients who qualify to apply for domestic partnership status.
She said that the rights provided by the law present some “unique” estate planning opportunities previously unavailable for same-sex partners.
Along with the ability to inherit assets and sue for wrongful death, the law gives same-sex partners hospital visitation rights and the ability to obtain a deceased partner’s home, vehicle or property.
Procedurally, the new law makes it easier for partners to “decide who they want to get their property,” said Hannon.
Because the law gives a surviving partner the right to inherit even in the absence of a will, much like traditional married couples, Hernandez said that means domestic partners who register will need to decide if they want other heirs to get their assets.
“What happens if you die without a will in place? The law from what I can tell is giving domestic partners every right a surviving spouse gets,” Hernandez said.
Emily Dudak Taylor, an attorney who focuses on lesbian, gay, bisexual, and transgender (LGBT) estate planning, is trying to address client confusion about the limitations of the statute.
While the new law provides some of the same benefits married couples receive, others, such as tax benefits and child custody rights, are not included.
For example, Dudak Taylor, who works at The Law Center for Children & Families, advises clients that there is no provision in the law giving non-biological parents any parental rights.
She also noted that it is “dangerous” for same-sex domestic partners who have joint title to property to assume that the new law provides a gift tax exemption.
“Jointly titling real property is great, but it can have unintended consequences,” she said, leaving the surviving partner subject to the gift tax. Attorney Ruth J. Irvings, who does estate planning for unmarried couples, said her clients are asking whether it’s worth registering for same-sex domestic partnerships.
In Irvings’ view, while the benefits are modest compared to what married couples receive, the new law does provide some important rights, notably hospital visitation rights and the ability to inherit.
“Even if [a same-sex couple] has health care powers of attorney and HIPAA authorization, their rights [as registered partners] go beyond what they can get from documents that estate planners do,” said Irvings, who practices at Nelson, Irvings & Waeffler SC in Wauwatosa.
But with a constitutional challenge pending before the state Supreme Court, Hernandez is advising clients to be cautious.
One concern is that estate plans drafted to specifically include language from the domestic partnership law may be at risk if the law is invalidated.
“The only way to deal with that is to address it specifically with the client,” said Hernandez. “It should be up to them to tie in domestic partnership language if they want.”