2010 – The year Wisconsin Recognized Same-Sex Partnership
Wisconsin hasn’t yet joined the states that recognize same-sex marriage, but our state has taken steps to recognize domestic partnerships in a way that impacts estate planning, property rights, employee benefits, healthcare decision-making, wrongful death actions and more. Now, same-sex couples can take a pro-active approach to protect each other and provide for each other in life and after their death.
(State employees fall under a different set of rules, and this article will not treat those rules. See 2009 Wisconsin Act 28 for more details.)
Who Qualifies to Create A Domestic Partnership in Wisconsin?
Non-state employees, meaning everyone else (and State employees who meet both definitions), falls under Wisconsin’s new Chapter 770 defining same-sex domestic partnerships in this state. Under the statute, a same-sex domestic partner has 1) applied for and obtained a Declaration of Domestic Partnership (DDP) with the clerk in the county in which one of them resides for at least 30 days prior to the application AND 2) recorded the declaration with the Register of Deeds.
Same-sex domestic partners are qualified to get a DDP if they:
- Are both at least 18 years of age
- And are otherwise capable of consenting to the DP
- Neither is married or in a DDP with another individual
- The two applicants share a common residence
- The two individuals are not next of kin closer than 2nd cousins
- The two are members of the same sex
As stated in Howard Sweet’s article entitled “Understanding Domestic Partnerships in Wisconsin”, Wisconsin Lawyer, 2009 Issue, the requirement that neither parties be married creates an interesting presumption that Wisconsin recognizes marriages of the same sex that are legal in other states. This is not explicitly stated anywhere, but a good argument can be made that Wisconsin gives full faith and credit to a marriage (same sex or not, of course) that was performed and legally recognized in another state. A court may take the position that this provision requires that neither be married to anyone OTHER than the intended DP. It is yet to be seen.
How Do We Divorce if it Doesn’t Work Out?
Nullifying a DP in Wisconsin requires a Certificate of Termination from the same Clerk of Court who issued the DDP. Either partner may file a Notice of Termination of DP and must either have the signature of the other DP or must follow the rules of service of process.
Unfortunately, this is not like a divorce. It makes sense that because the state is not granting the same rights that are recognized in marriage, they would not grant an actual divorce for a DP. What this means is that, unfortunately, there are no court dates to talk about dividing up property or custody and placement of children because there are not provisions that address ongoing property rights and division of property mechanisms during the termination of a DDP, which is why a DP couple may want to consider a contract similar to a prenuptial agreement prior to applying for a DP, so that if the relationship breaks down, property rights and divisions are subject to a binding contract. There are also no provisions for the treatment of the children of a DDP couple in Wisconsin upon termination of the DDP. Child custody under this scenario is beyond the scope of this article and will have to be treated elsewhere.
So What Difference Does it Make?
The benefits of a DDP include:
1) Spousal privilege extends to same-sex DPs
2) Health insurance companies may provide DPs with coverage
3) Wrongful death actions may be brought by the surviving DP
4) Death benefits may be payable to the surviving DP
5) Any estate planning instrument provision naming a DP as a beneficiary will be revoked by a DDP termination
6) Estate planning instruments that do not provide for the surviving DP that were created prior to a DDP will be subject to the surviving DP’s entitlement to an intestate share of assets
7) Powers of Attorney given to a DP will be revoked upon termination of a DDP
8) Interest in vehicles and homes will be transferred to the surviving DP upon the death of one partner without the usual transfer fees
9) A decedent DP who dies without a will does now leave an intestate interest in his/her property to the surviving DP
10) FMLA applies to the care of a DP in the same way it would for a spouse
11) Property acquired together will be recognized as joint tenancy property, unless otherwise evidenced in a title document or bill of sale
12) Hospital visitation rights are the same as those afforded a spouse
13) Nursing care and rehab admitting rights are the same as those afforded to a spouse
14) Rights to authorize post-mortem organ donation and autopsy are the same afforded a spouse
15) Healthcare power of attorney given to the partner is revoked upon termination of the DDP
16) A surviving DP has the same rights to inspect healthcare records of the deceased DP as a spouse would
17) Worker’s compensation and unpaid wage claims for deceased DPs may be brought by the surviving DP
There are some 40 various provisions through the Wisconsin code that are affected by Chapter 770. For a specific interpretation regarding your particular fact-scenario, contact an attorney familiar with the new Domestic Partnership Law in Wisconsin.
This article is for general information purposes only. It is not intended as legal advice and it does not constitute establishment of an attorney-client relationship with anyone who reads it or an attempt to create an attorney-client relationship. Keep in mind that the law changes frequently based on legislation and case law. If you have a legal issue that relates to this article’s subject matter, please consult with a licensed attorney to determine your individual rights and to clarify the law with respect to your particular set of facts. If you live in another state, please consult a licensed attorney in your state. Dana Boyle is licensed in the state of Wisconsin.