Protecting Your Domestic Partnership

A marriage means many things: often thoughts go to the ceremony, the ring, kids and the house with the white picket fence. While on the surface that is what marriage is, under the umbrella of the law it means much more. As same sex partners are aware, the majority of our states, 45 to be exact, prohibit same sex marriage. Five states currently allow same-sex couples to marry. In date order, those states are: Massachusetts, Connecticut, Iowa, Vermont and New Hampshire. The District of Columbia also now recognizes gay marriages as of March 3, 2010  (“Which States Allow Gay Marriage?” by Steve Williams, January 17, 2010). The inability to marry or the decision not to marry precludes a couple from many rights, protection and benefits. It should also be noted that not only does Pennsylvania no longer recognize “common law marriage,” it specifically defines marriage as between one man and one woman.

The Commonwealth has enacted Pennsylvania’s version of the Defense of Marriage Act, 23 Pa.C.S. § 1704, which reads “It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.”

The institution of marriage carries with it many legal rights, protections and benefits which derive from common law or have been codified into statutory law over the years.  These include:

Estate Planning Benefits: If you die without a Will, your spouse will automatically inherit a share of your estate assets under the intestacy law. The law of intestate estates prescribes how your estate assets will be distributed upon your death, but those assets will only go to close family members, not same sex domestic partners.

Tax Benefits: Married couples can file joint income returns, allowing for many tax deductions and offsets. In Pennsylvania, the inheritance tax for property passing to the surviving spouse is zero, whereas the tax on property passing to non-family members is 15 percent.

Medical and Funeral Decisions: Most hospitals will allow a spouse to visit his or her husband or wife without the need for a power of attorney or other documentation, and may not seek other authority to make medical decisions the spouse’s behalf if he or she becomes incapacitated or in a permanent state of unconsciousness. A domestic partner, on the other hand, cannot make medical decisions and may not even be allowed access to the hospital to visit. Funeral homes will typically not seek authority from a surviving spouse to determine funeral, body disposition, or burial arrangements.

Receipt of Benefits/Death Benefits: Married couples may take for granted their right to be the beneficiary of various forms of benefits, including medical insurance, retirement benefits, Social Security, and workers’ compensation fatal claim benefits. 

Family Law Rights: Our law is replete with protections for married couples who want to dissolve their relationship, including spousal support, child support, provisions for child custody, and the ability of the court to equitably divide marital property.  Domestic partners cannot take advantage of these opportunities and protections.

The above list sets forth only a few of the rights afforded to married couples and consequently illustrates just some of the rights which domestic partners cannot enjoy.  However, it does not mean that there is nothing that can be done to protect domestic partners. The law in this area is rapidly evolving. For example, many large companies now provide health insurance to domestic partners. Family law attorneys are becoming increasingly savvy in their attempts to construct, by contract law or otherwise, some of the same rights which married couples enjoy.

People involved in domestic partnerships would be well advised to consult with a qualified family law or estate planning attorney to discuss their options. There are a multitude of ways in which the law can protect same sex partners absent marriage. If nothing else, at a minimum same sex partners should consider drafting a Will, Power of Attorney, and Living Will/Advance Healthcare Directive. They should also consider entering into a Domestic Partnership or Cohabitation Agreement. Same sex couples that have married legally in another state may not be afforded the protections of that institution in Pennsylvania.