Legal Benefits of Domestic Partners Registry

On Thursday, March 1, 2007, the Washington State Senate passed SB 5336 by a vote of 28-19. This bill, which extends many of the benefits of marriage to unmarried couples, is widely expected to pass the House due to a Democratic majority. Governor Christine Gregoire has already indicated her support for the bill and that she will sign it. SB 5336 will create a domestic partner registry which will be administered by the Office of the Secretary of State. The Secretary of State is directed to prepare separate forms for the declaration and termination of a state registered domestic partnership. The forms must contain statements that registration and termination may affect property and inheritance rights and that these rights conferred by registration may be superseded by a will, deed, or other instrument.

How SB 5336 Will Impact Washington Law

SB 5336 was specifically amended to state that nothing in the bill will affect any remedy available in common law. Thus, domestic partnerships do not result in any changes to existing meretricious relationship law. As the bill does not provide for community property laws to be applied to termination of state registered domestic partnerships, meretricious relationship law will presumably apply. However, proving the existence of a meretricious relationship will likely be considerably easier as the parties’ intent is made clear by signing the declaration forming the partnership. Although SB 5336 does not provide same-sex partners with all of the same benefits as marriage, it is an important step towards providing much needed legal protections. This step forward in this direction is often cited as the “slippery slope” toward legalizing gay marriage by those opposed to gay marriage.

Who May Register as Domestic Partners Under SB 5336

Individuals seeking to enter into a state registered domestic partnership must:

1. share a common residence;
2. be at least 18 years of age;
3. not be married to, nor be in a state registered domestic partnership with, someone other than the person with whom they are entering into a domestic partnership;
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.

The inclusion of domestic partnerships for individuals over 62 years of age was added to allow individuals the ability to have some of the most important benefits of marriage without losing their pension rights and social security benefits. Although specific procedures have not yet been determined, declarations of state registered domestic partnerships will be filed with the Office of the Secretary of State along with a filing fee that does not exceed $50. The declarations must be notarized and signed by both parties. The Office of the Secretary of State will then provide a “Certificate of State Registered Domestic Partnership” to each party. A permanent record of the registration will be created and a copy will be forwarded to the state registrar of vital statistics. If partners have registered as domestic partners in another State, SB 5336 permits their domestic partnership to be recognized in Washington if the partners meet the eligibility criteria described above.

Rights Conferred by SB 5336

SB 5336 confers the following rights onto state registered domestic partners:

• Health care facility visitation rights;
• The ability to grant informed consent for health care for a patient who is not competent;
• The ability to be able to speak with health care providers who will now be able to disclose information about the other partner without that partner’s authorization;
• A surviving domestic partner may bring a wrongful death action based on the death of the other partner;
• Title and rights to cemetery plots and rights of internment;
• The ability to authorize autopsies and request copies of autopsy reports and records;
• The right to control the disposition of the remains of a deceased partner;
• The ability to consent to the removal of human remains from a cemetery plot;
• The ability to make anatomical gifts;
• Inheritance rights when the domestic partner dies without a will; and
• Administration of an estate if the domestic partner died without a will or if the representative named in the will declines or is unable to serve.

Additionally, a certificate of domestic partnership issued by the Office of the Secretary of State fulfills eligibility requirements for the partner of a public employee to receive benefits.

Benefits of Marriage Not Granted by SB 5336

SB 5336, as a state law, will not grant any federal benefits to domestic partners. Therefore, what are arguably some of the most important benefits of marriage are denied to state registered domestic partners. These include all federal entitlements available to married couples, and the ability to sponsor a spouse for immigration to the United States. Even in states like Massachusetts where same-sex marriage is legal; married same-sex spouses still have no marital rights under federal law.

MEDIA RESOURCE

Sands McKinley, managing partner of McKinley Irvin, PLLC.

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