Vol. 82, No. 11, November 2009
With the passage of the 2009 budget bill, enacted as 2009 Wisconsin Act 28 (the Act),1 Wisconsin has now joined the lengthening list of states that have enacted statutes to define domestic partnerships and govern the relationships between domestic partners.
The Act’s domestic partnership provisions affect many areas of the law: estate planning, property rights both during the relationship and on the death of one partner, employee benefits, health-care decision making, wrongful death actions, and many more. The Act has not one, but two, definitions of domestic partnerships: 1) limited purpose domestic partnerships (also called state employee domestic partnerships) and 2) same sex domestic partnerships. A word search of the 692-page Act shows that at least 120 sections address domestic partnerships in some fashion and that the words “domestic partner” have been added in at least 368 places in the statutes. While the Wisconsin statutes affected by the Act are extensive, they are far from the type of comprehensive provisions that define the relationships between married people.
This article is a brief introduction to Wisconsin’s version of the domestic partner relationship. It addresses the statutory definitions, lists many of the statutes the Act affects, and identifies some of the many provisions governing the relationship between spouses that are not directly affected by the Act. Finally, the article addresses several situations in which couples can benefit from advance planning.
The Act creates two distinct types of domestic partnership. One type is a limited purpose domestic partnership, available only to employees of the state of Wisconsin, that relates primarily to benefits that are available to state employees. Unfortunately, both this type of domestic partnership and the second form, which will potentially apply to many more couples, are given the same name – domestic partnerships. In an attempt to avoid confusion (at least in this article), the term “state employee domestic partnership” is used when discussing the first type of domestic partnership and the term “same sex domestic partnership” is used when discussing the second type of domestic partnership.
The same two individuals, if they qualify, can be state employee domestic partners, same sex domestic partners, or both. Complying with the set of requirements for one form of domestic partnership does not automatically qualify the parties under provisions of the other form.
Definition and Creation of a State Employee Domestic Partnership
State employee domestic partnerships are defined differently than same sex domestic partnerships.2 There are several key differences. The most striking difference is that there is no requirement that the state employee domestic partners be of the same sex. However, unlike same sex domestic partners, state employee domestic partners must consider themselves to be members of the other’s immediate family and must agree to be responsible for each other’s basic living expenses.
For health insurance purposes, a state employee domestic partnership is formed by submitting an affidavit to the employee’s state employer affirming that the employee and his or her domestic partner meet these requirements.3 There are no statutory procedures spelling out how a state employee domestic partnership is created for purposes of other benefits such as state group life insurance or state retirement system accounts. Because the definition of a state employee domestic partnership involves, in part, the subjective intent of the partners, this lack of procedure could lead to post-death contests between a surviving state employee domestic partner and other potential beneficiaries. Presumably this lack of procedure will be addressed administratively. Provisions affecting state employee domestic partnerships go into effect Jan. 1, 2010.
Effects of a State Employee Domestic Partnership and Dissolution
The major consequence of entering into a state employee domestic partnership is that after Jan. 1, 2010, benefits administered by the group insurance board and retirement benefits administered by the Department of Employee Trust Funds will treat state employee domestic partners in the same fashion as spouses of married state employees. Benefits such as family health insurance coverage, state group life insurance, and benefits under the state retirement system will be available to state employee domestic partners. These matters are beyond the scope of this article.
The procedure for ending a state employee domestic partnership is not spelled out in any detail. A state employee domestic partnership is apparently “dissolved” and not terminated. With respect to health insurance, a state employee domestic partnership is dissolved merely by filing an affidavit with the state employer stating that it is dissolved.4 An employee cannot enroll a new domestic partner for health insurance coverage until six months after the date of dissolution of the previous partnership.5
Definition and Creation of a Same Sex Domestic Partnership
A same sex domestic partnership is a relationship described in new Wis. Stat. chapter 770.6 This new chapter defines a domestic partner as an individual who has 1) applied for and obtained a declaration of domestic partnership from the county clerk of the county in which he or she resides (for at least 30 days before the application) and 2) had the declaration recorded with the register of deeds.7 Chapter 770 defines a domestic partnership as consisting of two individuals who meet all the following criteria8:
1) Each person is at least age 18 and capable of consenting to the domestic partnership.
2) Neither individual is married to, or in a domestic partnership with, another individual.
3) The two individuals share a common residence. (This does not require that both hold title to the residence, and it does not prevent either individual from having additional residences that are not shared with the other individual. The statute does not include an explicit requirement that the shared residence be the primary residence of either of the partners.)
4) The two individuals are not nearer of kin than second cousins.
5) The two individuals are members of the same sex.
Individuals who meet these criteria may apply to the county clerk of the county where at least one of the individuals has lived for at least 30 days.9 The five-day waiting period can be waived on payment of an additional $10 fee.10 The applicants must provide documentary proof of identification and residence, Social Security numbers, certified copies of birth certificates and, if appropriate, certified copies of divorce judgments, certificates of termination of prior domestic partnerships, or death certificates of a deceased spouse or domestic partner.11 The county clerk will then issue the declaration, which the parties must sign before a notary public.12 The completed declaration then must be recorded by the register of deeds, who must forward the original to the state registrar of vital statistics.13
Each county clerk must maintain a domestic partnership docket book, which must be open for public inspection.14
The requirement that neither individual be married to or in a domestic partnership with another individual, when read with Article XIII, section 13, of the Wisconsin Constitution, which provides that only a marriage between a man and a women is to be valid or recognized in Wisconsin, presents an interesting issue. Several states allow marriage between same-sex partners. If a same-sex couple were to be married to each other in another state, would that marriage bar them from entering into a domestic partnership with each other in Wisconsin? Such a reading of Wis. Stat. section 770.05(2) would imply that Wisconsin recognizes the out-of-state marriage. Courts will probably interpret Wis. Stat. section 770.05(2) to require only that neither party be married to or in a partnership with an individual other than the proposed domestic partner.
The statutes provide that the county clerk is to receive the same fee for each declaration of same sex domestic partnership (and for each certificate of termination, described below) as the clerk receives for issuing a marriage license.15
Terminating a Domestic Partnership
The statutes also provide a procedure for terminating a same sex domestic partnership. Either domestic partner may complete a notice-of-termination form, which is to be filed with the county clerk who issued the original declaration, regardless of where the parties reside at the time of the termination.16 The clerk is to collect a fee equal to the fee for issuing a marriage license.17
If the notice of termination is signed by only one of the same sex domestic partners, the notice must be accompanied by an affidavit stating that the nonsigning partner has either been served with a copy of the notice or that the domestic partner seeking termination has been unable to locate the other domestic partner and the notice has been published at least one time in a newspaper of general circulation in the county in which the domestic partners most recently shared a residence.18
The county clerk will then issue a certificate of termination, which is to be submitted for recording to the register of deeds of the county in which the declaration was recorded.19 The termination is effective 90 days after the certificate of termination is recorded with the register of deeds.20 If a party enters into a marriage recognized as valid in Wisconsin, however, the domestic partnership is terminated on the date of the marriage.21
Howard A. Sweet, Harvard 1970, practices with Hurley, Burish & Stanton SC, Madison, and devotes his practice to estate planning, trust and estate administration, and representation of tax exempt organizations. He also plays trumpet in a rock band, The Earthling Invasion. He can be contacted at email@example.com.
The statute is unclear as to whether Wis. Stat. section 770.12 creates two ways of terminating a same sex domestic partnership (either by recording a certificate of termination or by subsequently entering into a marriage) or two effective dates (90 days after recording the termination certificate or on marriage). The problem with interpreting the statute as providing two methods is that such a reading is inconsistent with the structure of Wis. Stat. section 770.12, and it would mean that the domestic partnership could be terminated unilaterally, without notice to the other partner and without leaving a paper trail in the county in which the partnership was originally registered. On the other hand, if the statute is interpreted as only providing one method to terminate the domestic partnership, it is possible that someone could simultaneously be a same sex domestic partner and at the same time married to someone of the opposite sex. For example, Sally could register as a domestic partner of Judy and then, without terminating the domestic partnership, Sally could marry David. This would appear to be allowed given that Wis. Stat. section 765.03, which states who is eligible to marry, was not amended by the Act and does not address same sex domestic partners.
Matters Affected by Creation of a Same Sex Domestic Partnership
The next logical question for people considering becoming same sex domestic partners is the legal meaning of becoming a domestic partner. Generations of people contemplating marriage have asked a similar question. Similar to the situation for people contemplating marriage, becoming a same sex domestic partner potentially means a lot (both emotionally and legally), but there is no one place in the statutes to which same sex domestic partners can turn to receive a concise and direct answer. The legal consequences are scattered throughout the statutes.
More than 40 areas of rights, benefits, and responsibilities are affected by entering into a same sex domestic partnership relationship. The following is a brief description of some of the major statutory provisions affected by the Act.
Joint Property. Property acquired in the names of two individuals who are identified as or who are in fact same sex domestic partners will be joint tenancy property, unless a contrary intent is evidenced in the document of title, instrument of transfer, or bill of sale.22
Real Estate Transfer Fees. Transfers of real estate interests between same sex domestic partners will be exempt from the real estate transfer fee.23
Family and Medical Leave. An employee who is a same sex domestic partner and who is covered by the Wisconsin Family and Medical Leave Act will have the same rights to take a leave to care for his or her domestic partner as a married employee has to care for a spouse.24 These provisions apply to state employee domestic partners as well as same sex domestic partners under chapter 770.
Inheritance and Probate25 – Intestacy. A surviving same sex domestic partner is given intestacy rights similar to those available to a surviving spouse.26 Because many people die without a will, this is a significant change.
Inheritance and Probate – Family Rights. A surviving same sex domestic partner will have rights to a family allowance similar to those available to a surviving spouse.27 In addition, a surviving domestic partner will have certain rights to select personal property (such as clothing and jewelry, automobiles, household furniture, furnishings and appliances, and certain other items of tangible personal property with a value not to exceed $3,000)28 and can seek the assignment of the decedent’s property interest in the home the domestic partners shared.29
Inheritance and Probate – Summary Procedures. If a deceased same sex domestic partner’s estate is worth $50,000 or less (net of secured debt), the estate will qualify for summary settlement and the surviving domestic partner is entitled to have property assigned to him or her as an allowance, provided that the property is not otherwise assigned to others.30
Inheritance and Probate – Transfers of Motor Vehicles and Manufactured Homes. The interest of a deceased same sex domestic partner in a motor vehicle is to be transferred to the surviving domestic partner under the same circumstances as would allow such a transfer to a surviving spouse.31 Transfers of motor-vehicle or manufactured-home titles between domestic partners are free of normally imposed supplemental fees.32
Inheritance and Probate – Effect of Creation and Termination of Same Sex Domestic Partnerships on Estate Planning Governing Instruments. Provisions for a same sex domestic partner in a will or other governing instrument are revoked by the termination of the domestic partnership.33 Governing instrument is a very broad term, which is defined in Wis. Stat. section 854.01(2) as including, among other things, trusts, insurance and annuity contracts, and retirement or similar benefit plans.
Failure to provide for a surviving same sex domestic partner in a governing instrument created before the partnership was formed gives rise to a right in the surviving partner to claim an intestate share.34
Designation of a same sex domestic partner as an agent under a Wisconsin basic durable power of attorney for property and finances is revoked on termination of the partnership.35
Inheritance and Probate – Miscellaneous. A surviving same sex domestic partner may maintain a wrongful death action and will have remedies similar to those of a surviving spouse.36
A surviving domestic partner may make a claim for unpaid wages.37
A surviving domestic partner can receive death benefits if the deceased partner was killed as a crime victim and is entitled to additional benefits if the deceased partner was a police officer or firefighter killed in the line of duty.38
A surviving domestic partner is entitled to victim compensation if the deceased partner was killed or injured while trying to prevent a crime or while assisting a law enforcement officer.39
Health-related Matters. A same sex domestic partner has visitation rights in various health-care settings (for example, hospitals, nursing facilities, community-based residential facilities, and hospice facilities) similar to the visitation rights afforded to a spouse.40
A domestic partner has rights to have an incapacitated domestic partner admitted to various health-care facilities similar to the rights afforded to a spouse.41
A domestic partner can consent to organ donations from the deceased partner and can authorize an autopsy of the deceased partner’s body.42
A domestic partner cannot be a witness to execution of the other partner’s health care power of attorney.43
If one domestic partner is designated as the other domestic partner’s health care agent, the subsequent termination of the domestic partnership will result in the revocation and invalidation of the health care agent document.44
A surviving domestic partner will have the same rights of access to his or her deceased partner’s health-care records as does a surviving spouse.45
Surviving domestic partners will have the right to file worker’s compensation death claims similar to those available to a surviving spouse.46
Miscellaneous. Same sex domestic partners will have victim notification rights similar to those given to spouses.47
Fraternal insurance companies can provide insurance coverage to domestic partners of their employees.48
Seemingly without a hint of irony (in light of the “don’t ask, don’t tell” federal statute), the Wisconsin statutes now extend the same protections available to spouses of active-duty members of the national guard to same sex domestic partners of active-duty members of the national guard.49
The testimonial privilege relating to testimony of a spouse will also apply to testimony of a domestic partner.50
Matters Not Addressed
The range of matters affected by registering as same sex domestic partners is not comprehensive. Perhaps the most significant matters not addressed relate to ongoing property ownership, control, and management issues during the domestic partnership and to the division of property on the termination of the domestic partnership. For people who marry, these matters are addressed by Wis. Stat. chapters 766 and 767. The statutes have numerous provisions that address consumer transactions in the context of a marriage (mostly in chapters 421, 425, and 427). For purposes of those chapters, domestic partners will continue to be treated as unrelated strangers. A conveyance of homestead property by married individuals requires the signature of both spouses.51 Similar protections are not extended to domestic partners. Chapter 154, subpart IV, creates presumptions as to who has the right and responsibility to determine final disposition of human remains (including arrangements for viewing, burial or cremation decisions, funeral or memorial service decisions, and so on) in the absence of a written authorization for final disposition. First in line are surviving spouses.52 Domestic partners have no standing under this statute. The Act has no provisions that address rights and responsibilities for minor children on termination of the domestic partnership or death of a domestic partner.
The failure to address such matters may have been a conscious decision by the legislature and governor to ensure that same sex domestic partnerships are not substantially similar to marriages and thus to bolster the argument that these changes do not violate the recently enacted Wisconsin constitutional prohibition on creating a status for unmarried individuals that is identical or substantially similar to marriage.53 Regardless of the motives, the effect, at least, is that same sex domestic partnerships differ from marriages in substantive and important ways.
As with marriage, the existence of a statute creating the same sex domestic partner relationship and detailing some of the consequences that flow from the relationship does not avoid the necessity of planning. Indeed, it probably augments the need for and utility of such planning.
The federal Defense of Marriage Act54 defines marriage as excluding relationships between same sex couples, and it provides that this definition of marriage applies to any Act of Congress, which, of course, includes the Internal Revenue Code (IRC). The IRC provides unlimited exemptions for estate55 and gift56 tax purposes for transfers to spouses or surviving spouses. These provisions need to be kept in mind whenever same sex domestic partners are sharing property and resources, because the partners might inadvertently step into a transfer-tax trap. The prime example is the new provision that provides that in the absence of contrary language, property acquired by domestic partners with both of their names on the evidence of title will create a joint tenancy. Acquiring real estate with a substantial down payment and listing both domestic partners on the deed will result in a gift from one partner to the other unless they make equal contributions and may require the filing of a gift tax return.
Whenever the domestic partners acquire real estate, they should consider who should hold title. If both partners will hold title, the conveyance should specifically state whether they intend to create a joint tenancy or a tenancy in common.
The Wisconsin Act requires a state employee domestic partner to file an affidavit stating that the partners have agreed to be responsible for each other’s basic living expenses.57 At least for now, state employee domestic partners should probably assume that this provision will import the common law doctrine of necessities (for married people, now codified at Wis. Stat. section 765.001(2)) into the relationship and potentially expose the non-employee partner’s assets to the creditors of the employee partner. Whether the doctrine can or will be extended to state employee domestic partners is an open question.
The Act does not directly address rights and responsibilities of each same sex domestic partner on termination of the partnership while both are still living. Will registering a domestic partnership have any impact on property division on termination? Will it bolster a Watts58 argument that the domestic partners intended to create a contract regarding ownership of property or even support a claim that the domestic partners intended, as a matter of contract, to import the provisions of chapter 767 into the partner relationship? Only time will yield the answer to these questions. For now, same sex domestic partners might well consider entering into an agreement addressing some of these questions rather than leaving it up to others to decide for them after the fact.
Wisconsin law attempts to coordinate marital property rights during a marriage with provisions for disposition of property on the death of one spouse by providing that each spouse owns one half of the couple’s marital property, both during the marriage and on the death of one spouse, and that a surviving spouse has election rights with respect to deferred marital property on the death of the other spouse. There is no equivalent to marital property for same sex domestic partners, and there is no such elective right for a surviving domestic partner. Accordingly, agreements between domestic partners and careful estate planning will be needed if property is to be disposed of in a manner consistent with the wishes of a deceased partner. Likewise, recognizing certain limited rights and responsibilities with respect to making health care and related decisions for a domestic partner is a far from adequate substitute for a health care power of attorney that can be used to give much broader authority to a health care agent, such as the power to select health-care providers and health-care settings and to make treatment choices.
Same sex partners who are state employees who qualify their relationship as a state employee domestic partnership need to consider whether they also wish to register as same sex domestic partners. They need to remember that the two types of partnerships are defined differently and created in different ways, bring with them different rights and responsibilities, and are ended by complying with different procedures.
The individuals should review all of their estate plans, beneficiary designations, designations of health care agents, and so on to ensure that they understand the consequences that terminating a partnership might have on beneficiary designations under those documents.
Registration as same sex domestic partners, for many individuals, will represent an emotionally significant act. It will be the first, tentative step in obtaining at least some public recognition of their relationship. Although 2009 Wisconsin Act 28 Act spells out some of the legal consequences that come with public recognition of that relationship, many other legal consequences are still unknown.
Editor’s Note: After this publication went to press, the Wisconsin Supreme Court refused to directly take up the challenge to Wisconsin’s domestic partner registry. The supreme court justices did not explain the refusal in an order issued Nov. 3, 2009.