This final installment of a 7-part series about domestic partnership agreements answers frequently asked questions (FAQs) about them.
How do domestic partnership agreements (DPAs) and prenuptial or premarital agreements differ?
Marriage contracts between two people who plan to marry are prenuptial agreements or antenuptial agreements. Marriage contracts between two people who are already married are postnuptial agreements or marital settlement agreements.
But some couples have no intention of ever marrying. “Domestic partnership agreements” (or “no nups”) are agreements between two unmarried people, regardless of same or opposite sex, define property rights and support obligations if their relationship ends or one dies.
Are DPAs recognized in Florida?
Yes. Domestic partnership agreements that do not offend Florida’s public policies and otherwise meet the requirements for enforceable contracts are recognized in Florida.
In 1997, Florida’s Fifth District Court of Appeal upheld a “support agreement” between a doctor/nurse lesbian couple as binding and enforceable. Posik v. Layton, 695 So. 2d 759 (Fla. 5th DCA 1997).
The couple’s support agreement provided:
- the nurse would give up her job, sell her home, move in with the doctor, and maintain and care for their home;
- one woman would support both women;
- the doctor would make a will leaving her estate to the nurse;
- the doctor would maintain bank accounts and other investments in the nurse’s name; and
- upon termination of the parties’ relationship for triggering events, the doctor would pay the nurse a monthly sum.
The court described the agreement as, “a nuptial agreement entered into by two parties that the state prohibits from marrying.” Even though Florida prohibited same-sex adoptions (but no longer does) and same-sex marriages (as of January 6, 2015, Florida’s ban was overturned), Florida still allowed agreements between unmarried people.
Constructive Trusts – Unmarried Couples
In Florida, no legal rights or duties flow from mere cohabitation. Posik v. Layton, 695 So. 2d 759 (Fla. 5th DCA 1997); see also Section 741.211, Florida Statutes (common-law marriages entered into after January 1, 1968, are void).
But a court may impose a “constructive trust” to do equity between unmarried couples living together. See Castetter v. Henderson, 113 So. 3d 153 (Fla. 5th DCA 2013); Evans v. Wall, 542 So.2d 1055 (Fla. 3d DCA 1989).
To establish a constructive trust, one partner, “must establish it by proof to the exclusion of all reasonable doubt.” Smith v. Smith, 108 So. 2d 761 (Fla.1959); see also Harris v. Harris, 260 So. 2d 854 (Fla. 1st DCA 1972).
What is a Constructive Trust?
Constructive trusts restore property to the rightful owner and prevent unjust enrichment. Crawley-Kitzman v. Hernandez, 324 So. 3d 968 (Fla. 3d DCA 2021); Silva v. de la Noval, 307 So. 3d 131 (Fla. 3d DCA 2020); Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022 (Fla. 4th DCA 1996); Abreu v. Amaro, 534 So. 2d 771 (Fla. 3d DCA 1988).
Constructive trusts are a remedy, not an independent cause of action. Abdo v. Abdo, 284 So. 3d 1101 (Fla. 2d DCA 2019). Moreover, the remedy is an extraordinary one, subject to the court’s discretion. See Collinson v. Miller, 903 So. 2d 221 (Fla. 2d DCA 2005).
So, when do courts impose constructive trusts? Courts impose constructive trusts upon property acquired by fraud or when it’s “against equity” that someone who acquired property should keep it. Quinn v. Phipps, 113 So. 419 (Fla. 1927).
A constructive trust is:
“constructed” by equity to prevent an unjust enrichment of one person at the expense of another as the result of fraud, undue influence, abuse of confidence or mistake in the transaction that originates the problem.
Requirements for Obtaining a Constructive Trust
For a court to impose a constructive trust, the court must find:
- a promise, express or implied;
- a transfer of property and reliance thereon;
- a confidential relationship; and
- unjust enrichment.
Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022 (Fla. 4th DCA 1996); Heina v. LaChucua Paso Fino Horse Farm, Inc.,752 So. 2d 630 (Fla. 5th DCA 1999). see also In re Kyle, 123 B.R. 111 (Bankr. S.D. Fla. 1990).
Constructive trust cases are difficult to prove, protracted, expensive, risky, and uncertain. To impose a constructive trust, a plaintiff must establish the claim by clear and convincing evidence. Abreu v. Amaro, 534 So. 2d 771 (Fla. 3d DCA 1988).
Accordingly, committed couples should consider defining their rights and obligations by contract. Domestic partnership agreements have advantages that outweigh a couple’s leaving their fate to a court system.
What are advantages and disadvantages of a legally binding domestic partnership contract?
Domestic partnership agreements provide flexibility and certainty for couples not marrying but still binding their lives together.
Good estate planning and drafting contracts for property transfers and support:
- can provide couples security;
- anticipate and plan for risks;
- save on taxes;
- allow for passing on assets to loved ones;
- enable charitable planning; and
- give guidance to personal representatives and trustees upon death.
Benefits of having a domestic partnership agreement include:
- documenting the parties’ desire to be in a committed partnership, but not necessarily marriage;
- formalizing support commitments if the parties do not have children together and if they do have children together;
- creating certainty about disposition of each partner’s property during the partnership and if it ends;
- providing for dispute resolution such as through collaborative practice
- creating certainty about disposition of each partner’s property upon disability or death;
- clarifying each partner’s duties and rights while they are together and after the relationship; and
- reducing the chance of disputes upon the parties’ separation.
If done improperly, domestic partnership agreements can cause confusion and invite litigation. Further, there may be disadvantages to the person giving up rights under Florida law in the absence of an agreement. So…how can couples protect their interests and avoid these disadvantages?
Using the Collaborative Process for Negotiating a Domestic Partnership Agreement
The Collaborative Process can assist a couple with negotiating a domestic partnership agreement. A full collaborative team includes a lawyer for each party, a neutral financial professional, and a neutral mental health professional may work with the parties in negotiating a domestic partnership agreement or, if the parties intend to marry, a premarital agreement.
The couple and their collaborative team meet together. First, they identify each person’s goals and interests. Next, they work on gathering and exchanging financial information. Together, they explore best options and their lawyers work on an agreement expressing the couple’s decisions.
In collaborative settlement agreements, the parties may agree to submit any future disputes to an agreed-upon collaborative process, even using the same team as the one used during negotiations.
How can domestic partner agreements cover medical decisions? DNR, medical directives?
A married person can presumptively make critical health care decisions for his or her spouse when that spouse can’t, because of disability or incapacity. But unmarried partners can’t automatically make such decisions without special documentation.
Under current Florida law, absent an advanced directive or registration through a domestic partner registry, an unmarried partner generally has no rights to participate in decisions regarding the health, life, and death of his or her partner. For many, an unmarried loved one doesn’t even have a right to obtain or provide health care information in the event of an emergency or life-threatening condition. That means, without written advanced directives to the contrary, only biological family may make life and death decisions if the person cannot.
An advance directive is a witnessed written document or oral statement by a person expressing their instructions about health care, through documents including, but not limited to, the:
- designation of the health care surrogate;
- a living will; or
- a do-not-resuscitate (DNR) order.
An experienced estate planning lawyer can help draft advanced directives.
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