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Are You Still Protected By Your Domestic Partnership Agreement?

February 2017

By: Ferrier R. Stillman

Prior to the Supreme Court case legalizing same-sex marriage nationwide, many same-sex, and even some unmarried opposite sex, couples could attempt to gain rights associated with marriage, such as the right to share in their partner’s income, property, and support, if they contracted for those rights in a Domestic Partnership Agreement (“DPA”).  So, now the question arises: does a DPA still provide any legal rights?

Although there is no Maryland law that directly answers this question, there is a California case that appears to give legal guidance on this issue. And, that case is the only one in the U.S. that answers this question. So, it is helpful in determining what happens to a DPA now that same-sex couples can marry.

In the California case, a same-sex couple signed a DPA. After same-sex marriage was legalized, the couple married. After one spouse died, the question arose about what legal effect the DPA had on the surviving spouse’s rights to inheritance from the deceased spouse. The California court held that DPAs are akin to prenuptial agreements. And, prenuptial agreements can vary, waive, or strengthen legal rights that people have upon marriage. Therefore, the court held that the DPA takes precedence over marital rights, even when the couple was not, and could not have been, married when the DPA was signed.

Whether a Maryland court would reach the same conclusion, or whether the legislature might enact laws on this issue, are unknown at this time. If not, then the parties, and the court, would have to consider arguments as novel as the question.  Regardless, if you have executed a DPA, it is time to dust it off and see whether it matches your and your spouse’s wishes if you have married since you signed the DPA.

Please contact Ferrier R. Stillman, co-chair of the family law department, at email or 410.752.9731, if you have any questions or would like additional information on DPAs or any other aspect of Maryland family law.

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