Domestic partnership agreements are contracts between two individuals planning to share a home together. The partnership agreement can cover who is responsible for what expenses, for example, and how property and income is divided. The agreement may establish what property and assets each party previously owned, and govern how property and assets will be divided if the relationship should come to an end or if one party should pass away. The agreement applies equally to same-sex couples as well as to heterosexual couples.
Texas Law and Marriage
Texas does not recognize or allow same-sex marriage under its jurisdiction, nor does it provide for same-sex civil unions. However, Texas is required by the Constitution to recognize all marriages licensed by other states. Texas same-sex couples not legally married in a state that does recognize same-sex marriage may wish to consider a domestic partnership agreement. The agreement, of course, is applicable to heterosexual domestic partners as well, and any group of people who are setting up a residence together.
Common Law Marriage in Texas
Texas is one of a handful of states that recognizes common law marriage. To qualify for common law marriage status in Texas, the couple must demonstrate that they agree to be married, live together, reside within the Texas borders, have a relationship that is both permanent and exclusive, and must present themselves to the public as husband and wife. Cohabitation by itself, however, does not meet the test. To have the terms of a domestic partnership enforced in court, most Texas couples will still need to have a domestic partnership agreement.
Common Items Covered
Domestic partnership agreements function similarly to prenuptial agreements, establishing which assets belong to which partner at the beginning of the relationship. They also can govern any claims of support one party may have against another. For example, one party may agree to work to support the other party while he goes to school, in the expectation that the arrangement will reverse once that person graduates. If one party does not cooperate with the terms, the aggrieved party can initiate a claim and seek redress in the courts.
While couples who are legally married may freely give property to one another without fear of generating a federal gift tax, domestic partners have no such luxury. If your domestic partnership agreement calls for a transfer of property, use caution in how you implement it. If one domestic partner transfers property to another for less than fair market value, the giver could incur a gift tax. Also, unmarried couples should take extra care when drafting their wills, and give careful thought to establishing a health care power of attorney. Otherwise, when one party is incapacitated, hospitals may not accept the decision-making authority of a non-spousal partner.