Feb. 7, 2018 – Wisconsin’s domestic partnership registry was enacted in 2009 to offer some level of protection for gay and lesbian couples who did not have the right to marry. The legislation remained on the books despite that marriage equality now exists in Wisconsin and throughout the nation. But starting April 1, 2018, Wisconsin will no longer offer the legal status of “domestic partner” and the approximately 40 rights and benefits associated with that designation.1 A lawyer who has clients who may benefit from registering as domestic partners should advise these clients that the option to register as domestic partners has an imminent deadline.
A Need to Act
Until the April 1, 2018, deadline, gay and lesbian couples can still register as domestic partners. The deadline is for registration as domestic partners and does not terminate domestic partnerships currently in effect or for couples who register before the deadline.
Some of the most valuable domestic partnership benefits include:
The right to inherit under intestate succession if a partner died without a will.2
The transfer of real estate between partners without taxes.3
Presumption of joint tenancy in real estate co-owned by the partners.4
Family medical leave for a sick or dying partner.5
Hospital visitation rights.6
The right to sue for a partner’s death caused by the negligent or reckless conduct of another individual or company.7
The right to receive worker’s compensation death benefits if the partner died in a workplace accident.8
The right to authorize organ donation on behalf of a deceased partner.9
The right to admit an incapacitated partner to various health care facilities.10
Application of the spousal privilege so that a domestic partner cannot be compelled to testify against his or her partner.11
The domestic partnership status has been as important in what it does not provide as the rights it does provide for same-sex couples. For example, under current law, when a domestic partnership ends, there is no divorce or other legal proceeding to terminate the domestic partnership. The couple simply files a form with their local county clerk’s office and the partnership ends automatically 90 days later by operation of the law.12 There are no presumptions under the law regarding the division of property at dissolution, no sharing of debts or obligations, and no duty of support such as maintenance (also known as alimony). The termination of the domestic partnership generally has not necessitated lawyers but simply terminated the access to the 40-some rights previously afforded to the couple. It was a “clean break” in most circumstances. In many ways, the benefits-only, no-obligations approach has allowed gay domestic partners to “have their cake and eat it too.”
The Impact of Same-Sex Marriage on Domestic Partnerships
On June 26, 2015, the U.S. Supreme Court, in Obergefell v. Hodges,13 ruled that gay and lesbian couples had a constitutional right to marry. Same-sex marriage became legal on a nationwide basis. Future cases in the U.S. Supreme Court would clarify the breadth and scope of same-sex marriage including the pending case this term, Masterpiece Cakeshop v. Colorado Civil Rights Commission,14 but the right to marry itself is firmly established as settled law.
In a point of some irony, gay and lesbian couples in Wisconsin had more rights and options than opposite-sex couples after the Obergefell decision. Same-sex couples had the option to either marry, with all its attendant duties, obligations, and benefits, or register as domestic partners, which offered some of the rights of marriage but without any of the obligations, responsibilities, or duties of marriage. Yet, not surprisingly, few gay couples have taken advantage of domestic partnerships since the right to marry was made available to them.
In the first five months after domestic partnership status became available in August 2009, the state registered 1,329 domestic partnerships.15 The number of registered domestic partnerships slowed down from the first-year high but the registry had consistently enrolled a few hundred couples each year. In 2015, the year in which the U.S. Supreme Court decided Obergefell, the number of domestic partnerships dwindled to only 40 couples for the entire state.16 This is not surprising. When denied such an important right as marriage for so long, it makes sense that many gay couples would eschew a “marriage-lite” alternative such as domestic partnership and embrace marriage. Yet, the two options remained for gay and lesbian couples.
The End of the State Employee Domestic Partnership Program
Domestic partnerships were limited to only same-sex couples in Wisconsin. The state domestic partnership registry, set forth in Wis. Stat. chapter 770, should not be confused with the state employee domestic partnership benefits offered under Wis. Stat. chapter 40. If you were a state employee, gay or heterosexual, you could designate your domestic partner to receive certain employee benefits similar to those available to a spouse, such as medical insurance, retirement benefits, and long-term care insurance. Effective Jan. 1, 2018, many of these benefits have been terminated for existing domestic partners and are no longer available to any future partners of state employees. The same act (2017 Wis. Act 59) that terminated the domestic partnership registry under Wis. Stat. chapter 770 also did away with domestic partnerships benefits under Wis. Stat. chapter 40 for state employees.17
The domestic partnership registry under Wis. Stat. chapter 770 was specifically limited to same-sex couples on the theory they could not marry. There was a basis for distinguishing between gay couples and opposite-sex couples with respect to domestic partners, namely, heterosexual partners could get married and gay partners could not. Now that marriage equality is the law of the land, the Wisconsin Legislature has passed 2017 Wis. Act 59, which ends the domestic partnership registry for gay couples effective April 1, 2018.18 The rationale is that now that gay couples can marry there is no need to offer them domestic partnerships because that legal status was essentially in lieu of the right to marry.
A Public Policy in Favor of Reviving Domestic Partnerships
The Wisconsin Legislature had another option. It could have made domestic partnerships available to opposite-sex couples instead of ending the option. There is validity and merit in giving couples an alternative to marriage. There are heterosexual couples who could have benefited from the domestic partnership option. Some couples might not be ready for the all-or-nothing approach of marriage but would still value some protection and recognition of their significant other. Some U.S. jurisdictions, even with marriage equality, recognize that there does not need to be only one state-sanctioned form of a relationship.19
There is no doubt that marriage is an important institution that will continue to be embraced by gay and heterosexual couples, but there also are couples who would like another option, an option that reflects the growing population of both younger and older generations who do not wish to marry for a myriad of reasons but do want to protect their partner and relationship.20
Some people argue that allowing domestic partnerships to continue and opening them up to opposite-sex couples would diminish the importance of marriage. We heard a great deal about the importance and sanctity of marriage by both sides of the debate related to marriage equality for gay men and lesbians. The one aspect that both sides agreed on is that marriage is indeed important and valued. It is unlikely that domestic partnerships would undermine such a strong institution. The fact that so few gay and lesbian couples took advantage of domestic partnerships during its brief tenure in our state history is evidence that offering another option to marriage will not weaken a centuries’ old institution such as marriage.
Marriage will continue to enjoy special significance within the social fabric of U.S. society. For many individuals, domestic partnerships might be a stepping stone toward marriage much like the rise in cohabitation in recent years. Or, it could be an end in itself, one that respects the partners’ autonomy to choose the alternative to marriage that most reflects their wishes, values, and expectations for their relationship. As a state, we can both encourage marriage while also offering another option that best fits the needs and bond shared by individuals who do not wish to marry.
A future legislature could allow domestic partnerships again not only for same-sex couples but all couples by adding one sentence to the domestic partnership legislation. This is not likely to occur in the current legislature, which just enacted the legislation to end domestic partnerships, but it will remain a viable option for future legislatures and generations. In the meantime, as lawyers, family members, and friends of gay or lesbian couples, we can provide them a great service by informing them of this imminent deadline to register as domestic partners.
1 2017 Wis. Act 59 (creating Wis. Stat. § 770.07(3) (“No county clerk may issue a declaration of domestic partnership to individuals who apply after April 1, 2018.”).
2 Wis. Stat. § 861.21.
3 Wis. Stat. § 77.25(8m).
4 Wis. Stat. § 700.19(2m).
5 Wis. Stat. § 103.10(1)(ar).
6 Wis. Stat. § 50.032.
7 Wis. Stat. § 895.04(2)(6).
8 Wis. Stat. §§ 102.49, 102.51.
9 Wis. Stat. § 157.05, .06(9).
10 Wis. Stat. § 50.06(2)(am).
11 Wis. Stat. § 905.05(1)-(3).
12 Wis. Stat. § 770.12(4)(a) (90 days begins to toll with county clerk’s filing of termination with the local register of deeds’ office).
13 135 S. Ct. 2584 (2015).
14 137 S. Ct. 2790 (2017) (posing question whether applying Colorado's public accommodations law to compel Masterpiece Cakeshop owner to create expression that violates his sincerely held religious beliefs about marriage violates the Freedom of Speech and Free Exercise Clauses of the First Amendment.).
15 Wis. DHS, Domestic Partnerships by County, Wisconsin, August 1, 2009 to December 31, 2009, (July 2010).
16 Wis. DHS, Domestic Partnerships and Terminations of Domestic Partnership by Wisconsin County January 1 to December 31, 2015 (May 2016).
17 2017 Wis. Act 59, § 706 (amending Wis. Stat. section 40.02(21d) to read “‘Domestic partnership’ means a relationship between 2 individuals, who submitted an affidavit of domestic partnership to the department before September 23, 2017, that satisfies all of the following:”).
18 Id. § 2225p.
19 California, Colorado, and Hawaii are among the states that have retained the domestic partnership-civil union legal status despite marriage equality for gay and lesbian couples.
20 See, e.g., Megan Murphy, NowUKnow: Why Millennials Refuse to Get Married, (last visited Jan. 28, 2018); Rachel L. Swarns, More Americans Rejecting Marring in 50s and Beyond, N.Y. Times (March 1, 2012).