Domestic Partnership Agreements: Survivor’s Rights on Death

This is the fifth installment of a seven-part series by Michael P. Sampson and Edith G. Osman

Florida law provides for various death benefits if a married person predeceases his or her spouse and they have no premarital or postnuptial agreement. For unmarried domestic partners, however, Florida law provides no survivor benefits upon the decedent’s death. But, through careful planning and drafting of a domestic partnership agreement, parties can achieve similar financial rights upon death.

One death benefit available to a surviving spouse under Florida law, but not to unmarried couples, is the “elective share,” the right a surviving spouse has to a share of the decedent’s estate no matter what the will provides.  A marrying or married party may waive that right. Florida law specifies the property included in the “elective estate.”  The amount of the elective share is 30 percent of the “elective estate.” 

For example, for married couples, if a spouse’s will provided the other spouse would get $100,000 upon death, and the rest of the wealth, money, and property would go into a trust for someone other than the surviving spouse, but the decedent’s “elective estate” calculated under Florida law were worth $1 million, the surviving spouse could elect to take $300,000.  

Using definitions similar to those for the spousal elective share, a domestic partner agreement could provide for irrevocable commitments, binding on heirs, that the survivor would have a share of the decedent’s estate, regardless of what a later will provided.

The draft domestic partnership agreement could lay out alternatives for either party to consider:

Option 1 – provide for a partial waiver and release of property and estate rights and a specific waiver by each party of any right to include the value of the interests in trusts in the elective share upon death. 

Option 2 – provide for a broader waiver and release by each of either party of property and various other estate rights upon death of the other party. 

Option 3 – provide, absent a later agreement to the contrary, for specific irrevocable rights in the other party’s estate upon the other party’s death.

Our next segment will discuss financial disclosures and privacy.

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