Written by attorney Frank A Selden

Domestic Partnerships (General Overview)

What is a Domestic Partnership?

A domestic partnership is a legal relationship between two individuals who live together and share a common domestic life but are not married. A domestic partnership is almost equivalent to marriage. The terminology for such unions is still evolving, and the exact level of rights and responsibilities conferred by a domestic partnership varies widely between States. The term civil union often connotes a status equivalent to marriage for same-sex couples while domestic partnership has generally connoted a lesser status with fewer bene fits. New Jersey, for example, allows for either a civil union or domestic partnership. However, states including California, Oregon and Washington have preferred the term domestic partnership for enactments similar or equivalent to civil union laws. This guide uses the term Domestic Partnership interchangeably with civil unions.

Where are Domestic Partnerships Available?

At the time of this guide (July, 2010), some form of Domestic Partnership rights are available in 11 States (California, Connecticut, Maine, Maryland, Nevada, New Jersey, New Hampshire, Oregon, Vermont, Washington, and Wisconsin) and the District of Columbia. Two States (Colorado and Hawaii) have limited beneficial arrangements. Links to more information for some of these States is included below. For States not listed please refer to the Lamda website.

What rights are available for domestic partners?

Rights vary widely between States. RIghts can include:

  • Responsibility for supporting each other “to the same degree and in the same manner as prescribed under law for married persons";
  • State tax benefits;
  • Improved access to family health insurance policies and joint credit;
  • The right to leave work to care for an ill partner;
  • Co-parenting privileges and responsibilities for any child who becomes the child of one or both partners during the civil union;
  • Automatic preference for the guardianship of, and medical decision making for, a partner should he or she become incapacitated;
  • Inheritance rights (even without a will); and
  • Equal access to state separation, divorce, child custody, child support and property division laws if the civil union ends.

What is the Defense of Marriage Act (DOMA)?

The federal government's Defense of Marriage Act, passed in 1996, mandates

  1. No state needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state. (DOMA, Section 2)
  2. The federal government defines marriage as a legal union exclusively between one man and one woman. (DOMA, Section 3)

Basically this means that if one domestic partner worked for the federal government and that partnership qualified for benefits under State law, the federal government would not be required to extend federal benefits to the other partner. For example, retirement plans governed under federal law would not extend automatic survivor benefits to a dometic partner of a deceased citizen although the same result could be accomplished with legal documentation. Other federal spousal rights, such as military housing, are not available to domestic partners.

What are some of the legal effects of creating a domestic partnership?

A domestic partnership can affect many aspects of life: insurance coverage, property ownership, responsibility for debt, inheritance, decisions about one’s personal health care, disposal of his or her remains, and rights about that person’s children. When you enter a domestic partnership you may need to make changes to insurance policies, wills, financial accounts, benefits (like retirement), or other arrangements you have regarding your living situation, business, or finances. Sometimes changes become effective just by filing a valid domestic partnership declaration. You should make sure you know in your State whether you need to inform your bank, government agencies, landlord, employer, health care provider or others about your partnership so that they can make any necessary changes to agreements or records.

What is a pre-partnership agreement?

A prenuptial agreement is a contract entered into by two people before their marriage. Similarly, persons entering a domestic partnership may want to enter an agreement to decide how their property will be divided if they terminate their partnership, get a legal separation or an annulment, or when one of them dies. Pre-partnership agreements are executed before the domestic partnership is established and post-partnership agreements are executed after. You should see a lawyer about what kind of agreement and what terms of the agreement are best for you.

When should you consult an attorney?

You can create your own domestic partnership without an attorney. If you or your prospective partner have children from a previous relationship, or own a business or other property, or have debt, or have unresolved legal responsibilities, getting legal advice can be very important. You may also want to discuss with an attorney how domestic partnership law affects you if you are in a registered domestic partnership in another state, or if you and your partner were married in a state that recognizes same-sex marriages.

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