Ask The Lawyer: Q: Is Our Domestic Partnership Legal Now That Same-Sex Marriage Is Legal?

Posted Mar 26, 2021 2:50PM EDT

Q: My partner and me have a domestic partnership when we lived together in WA state, even before gay marriage was legal there. In short, he moved to another state and several years later, I followed. We now live together again. What is the validity of the original domestic partnership, is that still legal in the new state, even if same-sex marriage is legal here? We do not want to get married for financial/income tax reasons.

A: Whether your domestic partnership is legal will depend upon which state you now live in. Only ten states have domestic partnership laws (Washington, Oregon, California, Nevada, Colorado, Illinois, New Jersey, Maryland, Maine, and Hawaii). Of those ten, domestic partners have the same state rights and responsibilities as married spouses. In Maine and Maryland, however, domestic partners have only the rights and responsibilities enumerated in that state’s domestic partnership law. Without checking every state, I’ll venture to say that those states that have enacted domestic partnership laws will recognize a domestic partnership entered into in another state, if it was validly entered into elsewhere, even, in some cases, if the domestic partnership was registered pursuant to a local registry, such as in Key West.

However, twenty states have laws specifically prohibiting the recognition of ANY gay or straight union similar to marriage, including civil unions. So, for example, if you moved to Florida, your domestic partnership will not be recognized at all.

Also, federal law does not recognize any legal same-sex union other than marriage, so no federal benefits, such as inheriting your partner’s social security, no death benefits, etc. And, you need to know if the state you now live in recognizes informal (common-law) marriage because your domestic partnership may be recognized as such, granting you and your partner the same rights and obligations as a legal marriage. This is the case in nine states and the District of Columbia. The states that recognize common law marriage are Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, New Hampshire, and Utah. However, these states require some form of proof that the common law marriage existed. The elements of proof required by these jurisdictions are enumerated in their common law marriage laws.

Without knowing more particulars about your situation, it is difficult to better advise you, but I hope my answer here provides you some guidance. I don’t know your reasons for not marrying but in my experience, there are more good reasons favoring legal marriage over simply living together. You mention taxes, for example, but you should consider that if one of you dies, even if you name your partner in a will, there may be significant tax issues for unmarried partners including taxes on transfers of property, federal gift taxes, and other taxes. If your partner is a veteran, unmarried partners cannot share tax exemptions and other benefits provided to veterans. Most states, I believe, allow the married spouse to take title of a deceased spouse’s motor vehicle.

Some other things to consider: If either of you have children or living parents, they will almost always have rights superior to yours when it comes to guardianship, hospital visitation, making medical decisions if you are unable to do so, among other things, even if you have prepared a living will, and other documents.

As you can probably tell, I am very much in favor of marriage for many couples. My final advice to you is that you should meet with an attorney, most likely an estate planning attorney, in the state where you now live. I would advise you to check with that state’s bar association to get a referral to an LGBT-friendly attorney. Many state bar associations now have an LGBT section. I hope this answer is helpful to you.

Oh, and one more thing. There is NO SUCH THING as GAY marriage — it’s just marriage.

Stephen shared advice to our community and to others before us for many years, and we offer sincere thanks for all the good he's done for everyone. 🙏