Domestic Partnerships/Civil Unions: An Overview

Laws which affect the treatment of same sex unions are currently in a state of flux. The traditional vehicles for addressing this issue are domestic partnerships, or civil unions, which provide same sex couples in a monogamous committed relationship (and the elderly) with many of the same rights, protections and responsibilities of heterosexual married couples. A domestic partnership is a legal relationship established between same-sex couples in an attempt to provide them the same types of rights and protections of married couples. A few states have legalized marriage between same sex partners which could someday supersede domestic partnership/civil union laws. In California, a potentially landmark case is currently pending challenging a voter enacted law that limits marriages to “one man and one woman.” Because of the hotly contest nature of this issue, chances are high that it will be appealed to the Supreme Court which would permit the High Court to weigh in on this issue, once and for all. For now, domestic partnerships and civil unions remain the primary way for same sex couples to enjoy the rights, protections and safeguards of heterosexual married couples.

Because domestic partnership and civil union laws are state specific, the rights, remedies and protections available to you will vary depending on where you live. A couple that is considering entering into such a legal relationship should consult a family law attorney who is familiar with these issues. Despite the recent voter legislation, California is probably the most far reaching in terms of the rights it grants to same sex couples. This overview, based predominantly of California’s domestic partnership laws, will demonstrate that even the most progressive laws or states do not extend all of the same rights and benefits of a traditional marriage to same sex couples.

A state that recognizes a domestic partnership or civil partnership usually requires a “Declaration of Domestic Partnership” or similar document be filed with the state. The requirements for entering into a same sex relationship generally include the following: (1) the couple share a common residence; (2) neither party be married or in a domestic partnership with another person; (3) the couple cannot be so closely related that they could not marry; (4) they cannot be minors; (5) they must be a same sex couple or both be eligible to receive social security benefits; (6) they must consent to jurisdiction of the court. These requirements can vary to some degree based on state law.

The stated purpose of the California domestic partner law was to extend the same rights and responsibilities available to married couples with respect to inheritance, custody/visitation, coverage on family insurance plans, the right to family leave to take care of a sick partner, bereavement leave, the right to sue for wrongful death actions, community property rights (though not exactly the same as with married couples), the right to spousal support and the presumption that children born during the partnership are the legal children of both parties.

A notable exception to the extension of rights to couples under domestic partnership and civil union statutes is the benefits of tax consequences. The federal government does not permit the filing of joint taxes under such arrangements and the California domestic partnership law has followed suit in terms of state taxes. Another issue affecting domestic partnerships is relocation to a state that does not recognize the union. If you decide to separate, or “divorce”, from your domestic partner, where you reside at the time will determine whether your union is recognized and enforcable. Consult with a family law attorney.