Domestic partnership in the United States
|Legal recognition of
|† Not yet in effect
1 Not in the Faroe Islands or Greenland
In the United States of America, domestic partnership is a city-, county-, state-, or employer-recognized status that may be available to same-sex couples and, sometimes, opposite-sex couples. Although similar to marriage, a domestic partnership does not confer any of the 1,138 rights afforded to married couples by the federal government. Domestic partnerships in the United States are determined by each state or local jurisdiction, so there is no nationwide consistency on the rights, responsibilities, and benefits accorded domestic partners.
Couples who live in localities without civil unions or domestic partnerships may voluntarily enter into a private, informal domestic partnership agreement, specifying their mutual obligations; however, this involves drawing up a number of separate legal documents, including wills, power of attorney, healthcare directives, child custody agreements, etc., and is best done with the guidance of a local attorney.
In any case, without legislation to enforce the agreement, all such provisions of the partnership may be ignored by hospitals, healthcare professionals, or other persons, and may be held invalid by state courts in disputes over child custody or over a deceased partner's estate.
As currently (2008) understood in the United States, a civil union is a legally recognized status almost identical to marriage, whereas domestic partnership often connotes a lesser status that may or may not be recognized by local law. However, the terminology is still evolving; the exact level of rights and responsibilities of domestic partnership depends on the particular law of a given jurisdiction.
Since 1999, the West Coast states of California, Oregon, Washington, and Nevada have all passed domestic partnership statutes; in contrast, most legislatures in the New England region and New Jersey have preferred the term civil unions. However, as a result of the 1996 federal Defense of Marriage Act, a state may decline to recognize same sex marriages performed in other jurisdictions.
In many other countries, the equivalent legal status is referred to as registered partnership, and domestic partnership refers to cohabitation, rather than a legal status.
The legal rights afforded to partners depends on the location. State-level recognition of partners is, generally, significantly stronger and can help partners secure benefits such as leave similar to that provided under the Family and Medical Leave Act. The range of benefits is generally greater in such cities as San Francisco, New York City, and Washington, D.C.
Potential legal conflicts
Potentially serious legal issues arise from the conflict between state domestic partnership and same-sex-marriage laws, and the structure of U.S. federal law, which, under the Defense of Marriage Act, explicitly does not extend Federal law recognition to those unions. This means that, for example, though they may considered as spouses under the laws of some states, domestic partners do not have spousal rights to Social Security benefits, to spousal benefits in the other partner's pension from a private employer (if that pension is governed by Employee Retirement Income Security Act, ERISA), and will not be treated as spouses for purposes of any Federal tax law.
Some public- and private-sector U.S. employers provide health insurance or other spousal benefits to same-sex partners of employees, although the employee receiving benefits for his or her partner may have to pay income tax on the value of the benefit.
Partner benefits are more common among large employers, colleges and universities than at small businesses. The qualifications for and benefits of domestic partnership status vary from employer to employer; some recognize only same-sex or different-sex couples, while others recognize both.
According to data from the Human Rights Campaign Foundation, the majority of Fortune 500 companies provided benefits to same-sex partners of employees as of June 2006. Overall, 41 percent of HR professionals indicate that their organizations offered some form of domestic partner benefits (opposite-sex partners, same-sex partners or both).
The San Francisco Human Rights Commission maintains a list of health insurance providers that offer insurance plans that cover domestic partners, or employee+1 coverage online: Domestic partner insurance provider search. The Human Rights Campaign Foundation offers best practices on how to implement them (see: Domestic partner benefits).
Taxation of benefits
Because the U.S. Federal Government does not recognize same- or opposite-sex partners, tax benefits provided to opposite-sex spouses are generally not available to same-sex partners and spouses or opposite-sex partners. IRS Regulation Section 1.61-21(b)(1) generally requires that the imputed value of the benefit be considered taxable income. For example if an employee covers his or her partner under an employer health insurance plan, the estimated amount the employer pays to cover the partner will be added to the employee's salary for tax purposes, unless the employee's partner is a qualifying dependent under Section 152. The same is not true for married couples. There are some exceptions that allow for tax-free domestic partner benefits, such as for a domestic partner that qualifies as a dependent under Internal Revenue Code Sections 152(a)(9) through 152(b)(5), a certification and annual recertification that the support and relationship tests of section 152(a)(9) are met, and the relationship between the employee and domestic partner does not violate local law.
The proposed Tax Parity for Health Plan Beneficiaries Act would remove these tax inequities.
Cities and counties with domestic partnership registries
Some U.S. cities offer domestic partnership registries. Some private employers use domestic partnership registrations for the purpose of determining employee eligibility for domestic partner benefits. The following are some examples of such registries.
- For a full list of cities and counties see the following page: Cities and counties in the United States offering a domestic partnership registry
New York City
Domestic partnerships in New York City exist for same sex couples and opposite sex couples in which both are above the age of 18 and are New York City residents (or at least one party to the partnership is an employee of the City of New York). The status provides essentially three benefits: (1) the ability to remain in a “rent controlled” apartment after the domestic partner lease holder dies, (2) the ability to visit the domestic partner in a city hospital or jail and (3) the ability of city employees to obtain subsidized health insurance for their partners and to obtain the benefits of the Family Medical Leave Act.
Signed into law by Rudolph Giuliani on July 7, 1997, the law codified executive orders by the previous two administrations. Other communities provide similar benefits; however one town, Eastchester, which had provided domestic partner benefits, has withdrawn the plan. State employees have received similar benefits under executive orders of the Governor and have been given priority over bodily remains of Domestic Partner as enacted into law by Gov. George Pataki in February 2006. For a discussion of both the history and implementation of New York Domestic partnerships see the June 2003 report of an official New York City Council study.
In 1982, a domestic partnership law was adopted and passed by the San Francisco Board of Supervisors, but Dianne Feinstein, mayor of San Francisco at the time, came under intense pressure from the Catholic Church and subsequently vetoed the bill. Not until 1989 was a domestic partnership law adopted in the city of San Francisco. As of December 2006, the city still offers a domestic partnership status separate from that offered by the state; city residents can apply for both.
Cities in Ohio
The first city to offer domestic partnerships in that state was Cleveland Heights in 2003, which was passed by voter referendum. In 2007, Toledo, OH became that state's second city to offer domestic partnerships. In 2008, the Cleveland City Council voted to enact a domestic partner registry. In 2011, the Athens, OH City Council established a domestic partner registry. In 2012, the Dayton, OH City Commission, the Cincinnati, OH City Council, and the Columbus, OH City Council all approved ordinances creating domestic partnership registries. Yellow Springs, OH also passed a domestic partnership registry in 2012, as did Oberlin, OH.
States offering domestic partnership status
Domestic partnerships in California exist for same-sex couples, and for opposite-sex couples in which one person is above the age of 62. The state of California first offered domestic partnerships in 2000. The Domestic Partner Rights and Responsibilities Act, which added nearly all the state rights and responsibilities of marriage to domestic partnerships was signed in 2003 and took effect in 2005. Couples in state registered domestic partnerships prior to 2005 who remained registered on January 1, 2005 became entitled to the rights and responsibilities of the new law. Paid Family Leave covers registered domestic partners. In 2007, domestic partnerships were allowed to change their surnames and jointly file state income taxes - eliminating the last piece of discrimination in the domestic partnerships laws at the state level.
Since July 1, 2009, both opposite sex and same sex couples have been able to enter a designated beneficiary agreement which will grant them limited rights.
District of Columbia
Domestic partnership in the District of Columbia have been recognized since 1992. Effective since 1 March 2002 and expanded further to "near spousal level" rights which were given by a district vote in 2003, 2005, 2007, 2008 and in 2009.
Reciprocal beneficiary registration was enacted in 1997. The law took effect on 1 June 1997. Civil unions became available to same- and opposite-sex couples on 1 January 2012.
Domestic partnerships in Maine, enacted in 2004, exist for all couples, regardless of sex. The law took effect on 1 January 2005.
Two bills, providing some limited domestic partnership rights for same-sex and different-sex couples, were passed by the 2008 General Assembly and came into effect on July 1 of that year.
A bill put forth creating a domestic partnership registry with the State attorney's office, passed by both chambers of the Nevada Legislature in early May 2009, but was vetoed by Gov. Jim Gibbons. On May 31, 2009, the Legislature overrode the governor's veto, thus putting domestic partnerships into effect. In 2002, Nevada voters approved Question 2 -- the referendum banning state recognition of same-sex marriages. The domestic partnerships are not officially marriages, but may be elevated to the status of a marriage if the couple involved wishes to proceed thus far (just like California). Heterosexual couples may also apply for a domestic partnership under Nevada law. The law took effect 1 October 2009.
Domestic partnerships in New Jersey have been available since July 30, 2004 for same-sex couples, and for opposite-sex couples in which one person is above the age of 62. However, on October 25, 2006, the Supreme Court of New Jersey ruled that under the New Jersey state constitution, the state could not deny the benefits of marriage to same-sex couples, although the court left it up to the legislature whether to call such relationships marriage or to use a different term. Complying with the court's ruling, on December 14, 2006, the New Jersey Legislature passed a bill establishing civil unions for same-sex couples, which was signed into law by the governor on December 21 and came into effect on February 19, 2007.
House Bill 2007, the Oregon Family Fairness Act, created legal recognition for same-sex couples and their families through domestic partnerships. The bill was signed by Governor Ted Kulongoski on May 9, 2007, and was due to come into effect on the following January 1. However, on December 28, 2007, a federal judge delayed implementation of the law pending a hearing on the legality of a petition drive to overturn the law. On February 1, the judge lifted the injunction on the law. Same-sex couples were able to register beginning February 4. Oregon is the first state in the Union to offer domestic partnerships with all the state-granted rights of hetrosexual marriage to same-sex couples despite a state-wide constitutional ban on same-sex marriage.
The Wisconsin legislature passed its 2009-2010 Budget on June 26, 2009. Governor Jim Doyle included language in the bill to allow for domestic partnership registrations for all unmarried persons, that will provide certain and limited rights and obligations of marriage. Wisconsin is not the first state to offer such domestic partnership benefits despite having a constitutional ban on same-sex marriage and comparable alternatives, like civil unions. A legal analysis found on May 15, 2009, that adding such language to the budget despite the bans was likely legal. The law took effect 3 August 2009.
The Washington State Legislature approved a bill establishing domestic partnerships in the state during the 2007 (expanded further in 2008 and 2009) legislative sessions. All domestic partnership bills were signed by Governor Christine Gregoire.
Referendum 71 sought voter confirmation of the 2009 domestic partnership extensions (SB 5688) in the 2009 elections. The bill was approved by 53 percent of the voters and became law.
From June 30, 2014, domestic partnerships will be available only when at least one of the partners is sixty-two years of age or older.
Many states recognize through their judicial systems cohabitation agreements and common law partner agreements concluded between two partners in a relationship.These are de facto domestic partnerships that protect both parties and allow for shared property and court recognition of their relationships.
Failed domestic partnership legislation
|This article is outdated. (November 2010)|
Domestic partnerships in Alaska have been ordered by the Alaska Supreme Court for same-sex partners of state employees. It was set to become law October 2006. The court has not gone so far as to make any specific policies but has instructed the state legislature to pass a bill to the same effect. If this happens, it would make Alaska the first determinedly red state to enact same-sex benefits. It would also be the only state with a specific same-sex marriage ban to enact such benefits.
As of December 2006, legislative efforts to overturn or nullify the Supreme Court's ruling are underway, and the outcome is uncertain.
The Colorado House of Representatives and Senate both passed a domestic partnership bill that was referred to voters in the November 2006 elections as Referendum I. In the general election, the proposal was defeated by a margin of 47% for, 53% against. If it had passed, the bill would have allowed same-sex couples many benefits that opposite-sex couples enjoy in the state.
The Maryland General Assembly approved a bill establishing a limited form of domestic partnership in its 2005 session. The main effect of the law would have been to allow same-sex partners to have hospital visitation and medical decision-making rights for one another equivalent to those recognized for married couples. However, the bill was vetoed by Governor Robert L. Ehrlich, who reportedly objected to the bill's use of the phrase "life partner". The veto was not overridden.
Similar legal status classifications
- Diaz v. Brewer
- History of civil marriage in the United States
- LGBT rights in the United States
- Rights and responsibilities of marriages in the United States
- Same-sex marriage in the United States
- Same-sex unions in the United States
- "Human Rights Campaign - Defining Domestic Partners for Benefits Purposes". Retrieved 2008-03-06.
- Human Rights Campaign Foundation - State of the Workplace for Gay, Lesbian, Bisexual and Transgender Americans, 2005-2006
- "Human Rights Campaign - GLBT Equality at the Fortune 500". Retrieved 2008-03-09.
- "Employees Undervalue Benefits, SHRM 2007 Survey Finds". Retrieved 2008-03-09.
- "What the Defense of Marriage Act Does". Human Rights Campaign.[dead link]
- "Taxation of Domestic Partner Benefits". Human Rights Campaign Foundation.[dead link]
- "Ruling 200339001" (pdf). Internal Revenue Service. September 26, 2003. Retrieved July 10, 2012.
- GLBT Couples Law | news | NY Town Drops DP Benefits
- Domestic but not equal: Domestic partner benefits inconsistently applied at public agencies
- Bishop, Katherine (May 31, 1989). "San Francisco Grants Recognition To Couples Who Aren't Married". The New York Times. Retrieved May 1, 2010.
- Office of The County Clerk: Filing a Domestic Partnership Agreement
- City to start registering domestic partners
- "Ritter signs bill that will help gay couples". Associated Press (The Denver Post). 2009-04-09. Retrieved 2009-04-10.
- Gay News From 365Gay.com
- 26.60.030 Requirements.
- "Prenups aren't just for married couples anymore". CNN. 2004-11-02. Retrieved 2012-03-30.
- "Adult Adoption: A New Legal Tool for Lesbians and gay men". Golden Gate University. Retrieved 2012-03-30.