Legislature Acts Post-Andersen Domestic Partnership Bill

On March 1, the Washington Senate – followed by the House last month – passed a domestic partnership bill (SB 5336/HB 1351), which will establish a domestic partnership ¹ registry. Governor Christine Gregoire signed the Senate bill into law on April 21.

This legislation will pose new challenges for attorneys who represent gay and lesbian couples, and unmarried couples where one partner is over 62 years of age.

The law will provide eligible couples, who register their relationships, with legal protections under Washington law. It is important to consider this legislation within the complex legal and social environment that surrounds same-sex couples and their families. In 1996, Congress passed the federal Defense of Marriage Act (DOMA). ² DOMA defines marriage as “the union between one man and one woman.”

By adopting this definition of marriage, Congress precluded the extension of more than 1,000 federal rights to same-sex couples. These include numerous tax benefits; the right to bring a foreign partner to the United States; the right to rollover a spouse’s 401(k) plan upon his/her death; the right to care for an ill spouse under the Family Medical Leave Act; and the right to receive family and death benefits from Social Security or a spouse’s pension plan. Because of DOMA, even same-sex couples who legally marry under Massachusetts law ³ are not entitled to the multitudinous rights granted to their heterosexual counterparts under federal law.

After the passage of DOMA, the majority of states passed “mini-DOMAs” that prohibit same-sex marriages and the recognition of such marriages performed in other states. In 1998, Washington passed its own mini-DOMA, ⁴ which precludes the extension of approximately 500 state rights to same-sex couples. The Washington Supreme Court recently upheld the constitutionality of this law in Andersen v. King County ⁵ and essentially punted the question of legal rights for same-sex couples to the Legislature.

This is where the domestic partnership legislation comes into play. Following on the heels of Andersen, the Legislature took a hard look at the inequalities faced by couples who cannot marry. In addition to protecting the rights of same-sex couples, the Legislature opted to grant the same benefits to opposite-sex couples where one partner is over 62 years of age. This allows these older couples to have legally recognized unions without losing important benefits, such as Social Security or pension payments. The bill will provide eligible partners who register their relationships with the State with several critical legal protections including, but not limited to, the rights to: ⁶

1. Visit an ill or injured partner in the hospital;
2. Provide informed consent for certain medical procedures for an incapacitated partner;
3. Bring a civil action for the wrongful death of a partner;
4. Authorize an autopsy on a deceased partner;
5. Control the disposition of a deceased partner’s remains;
6. Make anatomical gifts;
7. Inherit from a partner in the absence of a will; and
8. Administer a partner’s estate in the absence of a will.

So, how does it work? The domestic partnership registry would be operated by the Office of the Secretary of State. To be eligible for the registry, couples would need to: (1) share a common residence; (2) be at least 18 years of age; (3) not be married to, or in a registered domestic partnership with, any other person; (4) be capable of consenting to the partnership; (5) not be nearer of kin than second cousins; and (6) be members of the same-sex, or one of the persons must be at least 62 years of age.

By passing this legislation, Washington joins a handful of states that provide limited legal benefits for domestic partners, including Vermont, New Jersey, Connecticut, California, Hawaii, Illinois, Iowa, New Mexico, New York, Oregon, Maine and Rhode Island.

The nature and extent of these benefits vary greatly among the states. Vermont, New Jersey and Connecticut authorize “civil unions,” which provide same-sex couples with the same state rights afforded to married couples. Hawaii has a Reciprocal Beneficiaries Law, which provides domestic partners with approximately 60 state-conferred rights. California has the country’s most comprehensive domestic partnership act. Like a civil union, it provides same-sex couples the same state conferred rights as married couples. Washington’s legislation is more akin to Maine’s domestic partnership act, which provides a handful of state-conferred rights to same-sex couples. Other states grant only a few protections, while still others provide none whatsoever.

Washington’s step also will have a significant impact on the legal representation of same-sex couples and their families. Many of the rights couples will gain can already be provided through private contracts, but others, such as the ability to sue for the wrongful death of a partner, cannot.

Moreover, many of the legal instruments traditionally used to protect same-sex couples, including durable powers of attorney, healthcare directives, wills and other estate planning documents, can provide clients with more rights than would be afforded under the new law. Other states also are likely to recognize contractual agreements entered into by the parties, whereas they may not recognize rights conferred by Washington’s domestic partnership law.

The law also offers no protections for same-sex couples who separate. It allows partners to dissolve their domestic partnership, but it does not extend community property laws to domestic partnerships, so it does not provide guidance on the distribution of property obtained during the partnership.

The bill specifically states that it will not affect any common law remedies, so the uncertain world of meretricious relationship law will continue to govern. Given this, it is advisable that all couples who register as domestic partners also enter into domestic partnership agreements and other contracts that allow domestic partners to decide their own futures instead of leaving them for the courts to decide. Additionally, if domestic partners raise children together, they will continue to need the protections conferred by co-parenting agreements and adoptions.

Although Washington’s new law is a significant step forward for same-sex couples, it will not provide clear solutions for attorneys. It is another tool in the practitioner’s toolbox, but it should only be considered one tool of many.

¹ The term “domestic partnership” typically refers to a committed, intimate relationship between two people who are not married.

² Pub. L. 104-199, 100 Stat. 2419 (Sept. 21, 1996).

³ Massachusetts is currently the only state that allows gay marriage.

⁴ RCW 26.04.010.

⁵ Andersen v. King County, 158 Wn.2d 1, 138 P.3d 963 (2006).

⁶ These rights may be superseded by a will, deed, power of attorney or other instrument.