Domestic Partnership Rights by State

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 What Are Domestic Partnerships?

When it comes to legal romantic relationships, most people think of marriages and civil unions. But there is another legal status completely separate from these, known as the “domestic partnership.” A domestic partnership is perhaps best defined by what it is not. It is a relationship where two people bind together as a legally-recognized couple but are not bound by marriage, civil union, or any other legally recognized form of relationship contract.

While in some places, like New Jersey, domestic partnerships enjoy some of the same rights that marriages do, in most states, they are afforded fewer or no rights compared to a marriage. So what are these rights, and what jurisdictions allow them for domestic partnerships?

A domestic partnership is not the same as marriage. A significant difference is that marriages are recognized in all 50 U.S. states and foreign countries. Domestic partnerships and civil unions are only recognized in a few states.
Domestic partnerships became popular as an alternative to marriage before same-sex marriage became legal in the United States. Some people still choose to enter into new domestic partnerships for financial reasons, convenience, or because they want access to certain legal rights without becoming officially married.

The legal rights associated with domestic partnerships or civil unions vary depending on the state, city, or other government body that authorized the partnership. These rights include inheritance, medical-decision making, and tax treatment.

Aren’t Domestic Partnerships Just For Same-Sex Couples?

Before 2015, same-sex couples could not get legally married in many states. As such, they sometimes used domestic partnerships as a way to get at least some of the rights that married couples did. In fact, the origin of the term can be traced back to gay rights activists from California in the 1970s.

Domestic partnerships themselves are not just for same-sex couples. Heterosexual couples can also use this status when a marriage is not something that the couple wants to pursue.

Even though domestic partnerships became a popular alternative to marriage for gay couples in the 1990s and early 2000s, it is not only for gay couples. Many states offer domestic partnerships for heterosexual couples, especially couples with a partner over the age of 62.

Why Do You Have to be 62 to Get a Domestic Partnership in Some States?

One reason states allow domestic partnerships is to benefit seniors with social security benefits. In some states, divorced or widowed seniors may lose their right to their ex’s social security benefits if they remarry. Domestic partnerships allow seniors to enjoy some benefits of remarriage without losing social security benefits.

What Rights Do Domestic Partners Get?

Exactly what legal rights and benefits they receive depend on the state they live in. Some benefits that jurisdiction can guarantee domestic partners are work-related health, dental, vision benefits, health insurance, sick leave, and other employee benefits.

Some jurisdictions mirror the rights guaranteed in the Family and Medical Leave Act (FMLA). In addition, these laws grant recognized domestic partners the protection of housing and public access/recreation rights.

There are a few instances where domestic partners are also expected to accept responsibilities to receive the rights and benefits offered by law. For example, in California, a domestic partner is considered financially responsible for the other party during the relationship, much like in a marriage. With regard to taxes, property rights, and inheritance rights, the states with broader domestic partner rights and responsibilities often also have a property distribution scheme similar to a regular divorce if the relationship ends.

In most states, however, domestic partners receive neither the responsibilities nor the rights that marriages have in terms of taxes, property rights, and inheritance rights. Researching your local and state laws is the best way to know which rights, benefits, and responsibilities (if any) could apply to a domestic partnership in your state. This is an excellent time to hire an attorney to ensure you have the facts right.

Example: Domestic Partnership Benefits In California

In California, domestic partners are permitted identical employee benefits as those permitted in a traditional marriage. These benefits include retirement and health plans. (However, because the federal government has yet to acknowledge a domestic partnership, domestic partners are not entitled to the same rights as a traditional married couple in relation to the federal retirement plans or tax breaks).

Points to consider include:

  • A domestic partner can bring a wrongful-death lawsuit in the event of their partner’s wrongful death;
  • When their loved one dies, a domestic partner is allowed to participate in the intestate division of their partner’s estate, just as married couples can;
  • Domestic partners are allowed to keep communications privileged. This means they do not have to testify against one another; and
  • The standard community property laws in California apply to those who registered a domestic partnership.

Which States Offer Domestic Partnership Rights?

Domestic partnership benefits vary from state to state, from none to full rights. Most U.S. jurisdictions fall into the former category. Those states that fall somewhere in the middle usually see partnership rights offered in some cities or counties but not in others.

Classifications of domestic partnership rights by state are:

  • The “No Rights” States: There are many states without domestic partnership benefits. These are: Alabama, Alaska, Arkansas, Delaware, Idaho, Kansas, Kentucky, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, Ohio, Rhode Island, South Carolina, Tennessee, Utah, West Virginia, Wyoming;
  • The “Some” States: These are the states where benefits are offered in a few places, such as individual counties or cities: Arizona, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Texas, Virginia, Wisconsin. To see where exactly these benefits are offered, contact a lawyer to check the laws of the state, and then search for which city/county/townships provide these rights; and
  • The “All In” States: These states offer full domestic partnership benefits throughout the state: Connecticut, Hawaii, Nevada, Oregon, Vermont, Washington.

The federal Defense of Marriage Act (DOMA) permits states to decide whether or not to recognize a same-sex union that is recognized in another state.

However, same-sex marriage is not recognized at all at the federal level. Federal benefits don’t apply to same-sex marriages, including Social Security benefits, health insurance, veterans’ benefits, Medicaid, estate taxes, hospital visitation, pension benefits, retirement savings, family leave, and immigration policy.

Alternatives to Domestic Partnerships: Civil Unions, Same Sex Marriage, and Common Law Marriage

Understanding the difference between a civil union, domestic partnership, and same-sex marriage can be confusing. Five states have decided to adopt civil unions as of this writing. These civil unions are available to the opposite-sex and same sex-couples. Differences between a civil union and a domestic partnership will vary by state law.

A civil union allows a couple’s relationship to be legally recognized. A civil union grants same sex couples the ability to enter into a legally recognized relationship that gives them the same fundamental rights granted to traditional married couples. It provides each partner in a gay civil union with legal rights similar to the rights granted to spouses in traditional marriages.

In contrast to marriages and civil unions, domestic partnerships often only same-sex spouses have limited financial rights. These rights include receiving pension, health, and insurance benefits to file joint state tax returns.
Same-sex marriage grants the same rights and benefits under state law as traditionally married couples, such as tax relief, application of family laws, decision-making power in medical emergencies, inheritance rights, state spousal benefits, and spousal privilege in court testimony.

A common law marriage involves a couple who has lived together for a stated period of time and presents themselves to the world as being married, even though in fact, they have never gone through a formal ceremony, nor have they obtained a marriage license.

Essentially, this is a relationship that the state accepts as marriage, formed by a couple that did not get a marriage license or take part in a ceremony. Besides this difference, a common law marriage is the same as a traditional marriage. Common law marriage is not available in most states, but it is available in a minority of states.

Should I Get a Domestic Partnership? Benefits

Medical insurance: A major benefit to a domestic partnership is the ability to gain coverage under a partner’s employer-sponsored health insurance. In most states that recognize a domestic partnership, employers must offer the same coverage to domestic partners as spouses. This is a considerable advantage to couples where only one partner can access employer sponsored insurance. Private insurance for one individual is often very costly.

Tax Implications: Domestic partnerships can have major effects on state taxes because the state can grant members of a domestic partnership to file as a married couple.

For couples in a domestic partnership in a “community property” state, the IRS requires a special procedure for filing income taxes. The couple must add up all community income and divide it by two, with each partner claiming one-half of the income on their individual tax returns.

Do I Need An Attorney For Domestic Partnership Issues?

Yes. Domestic partnership laws can vary so widely between states, counties, and cities within the same state. It is easy to get confused about which protections you are afforded and which you are not. This is why if you are facing any potential legal issues with a domestic partnership, you need to contact an experienced local family lawyer.

Your attorney can explain all the laws and tell you which rights and responsibilities apply to your specific situation. And if you find yourself in legal conflict over domestic partnership issues, they can properly advise you on the best course of action and be your advocate every step of the way.

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