Business Law
DOMESTIC PARTNERSHIP IN WISCONSIN: THE BASICS
Wisconsin's new Domestic Partnership law, stated in Chapter 770 of the Wisconsin Statutes, went into effect on August 3, 2009. Although the law has been challenged in the Wisconsin Supreme Court, the law's effect will continue unless the law is overturned. This article addresses the basics of the new law.
Who can be Domestic Partners and how is the Partnership Formed?
Two people of the same sex, who are over 18 years old and capable of giving consent, can form a domestic partnership if neither of them is married or in another domestic partnership, if they share a common residence, and if they are not more closely related than second cousins. To form the partnership, they provide proof of identity and residence to the County Clerk of the county where at least one of them resides, complete an application, and pay a fee. If all requirements are met, the Clerk issues a Declaration of Domestic Partnership, which is then recorded with the Register of Deeds and forwarded to the state office of vital records.
What Legal Rights, Responsibilities, and Benefits are Available to Domestic Partners?
• All of these rights were available only to married couples before Chapter 770 was enacted. These include the right to:
• inherit a partner's assets upon death if the partner dies without a will;
• keep a deceased partner's personal and household items, be paid an allowance by the probate court during estate administration, and have certain creditor claims exempted;
• transfer the deceased partner's property valued at less than $50,000 without a probate proceeding, and transfer the deceased partner's vehicle title without probate or fees;
• sue for the wrongful death of a partner;
• receive survivor's death benefits in worker's compensation proceedings;
• be presumed to be a surviving joint tenant in real estate if the property is titled in both partner's names, unless the deed indicates otherwise.
In addition, these state laws, which previously were applicable only to married couples, now apply to domestic partners:
• Wisconsin's Family and Medical Leave Act, which grants two weeks of unpaid leave to care for a domestic partner or partner's parent (but not a partner's child) who has a serious health condition;
• the right to visit a partner in a hospital, nursing home, hospice, or similar facility, and the right to access medical records and admit an incapacitated partner to a medical facility;
• the right to not testify against a partner in court;
• Exemption from real estate transfer fees for transfer of real estate between domestic partners.
Do Domestic Partners Have the Same Legal Rights as Married Couples?
No. Many legal rights and benefits are still reserved only for spouses. The following, among other rights, are not available to domestic partners:
• Wisconsin marital property rights;
• Rights to property division and maintenance in divorce;
• Rights and responsibilities for minor children when the partnership is terminated or one partner dies;
• Ability to choose to be taxed as a couple instead of as individuals;
• Right and responsibility to determine final disposition of a spouse's remains, including burial or cremation decisions and funeral decisions.
Additionally, because Chapter 770 is a state law, it has no effect on federal rights or privileges, like Social Security spousal benefits, or retirement and pension benefit protection under ERISA. It has no effect on federal tax law, including income tax and gift and estate taxes.
Do Same-Sex Couples Still Need Advance Planning, Even if They are Registered Domestic Partners?
Yes. Although registered domestic partners are protected in some respects by the new law, many issues still need to be addressed:
• Gift and Estate Tax Planning. Because domestic partners cannot take advantage of unlimited gift and estate tax marital exemptions, domestic partners may walk into a tax trap created by one of the new benefits offered under state law: both partners are deemed to be joint tenants of property which lists them both as owners, but if one partner has paid more of the cost, that partner has made a gift to the other, and a gift tax return may need to be filed.
• Property ownership during life. Unlike property owned by spouses, state law does not address what happens to property owned by domestic partners if the partnership is terminated.
• Disposition of property on death. Married or not, estate planning is needed to ensure that a person's property is disposed of according to his or her wishes after death. Without advance direction, state law determines how property is divided.
Although Wisconsin's Domestic Partnership Law extends some important rights, responsibilities, and benefits to same-sex couples who register as partners with the state, it does not and cannot offer these couples all of the benefits of marriage. These couples, and other unmarried couples who are committed to each other, still need to take additional steps to look after each other during life and after death.
For further information on this subject please email Attorney Mary Lokensgard (Mary-Lokensgard@mennlaw.com). All our attorneys may be reached by phone at 920-731-6631 to discuss the legal issues you require.
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