Domestic Partnership Overview
Domestic Partnership is defined under Florida Statute Section 628.601 as a legal union of two unmarried persons who have chosen to live together and share a domestic life but who do not necessarily have a common child. Domestic Partners who apply for a Certificate of Domestic Partnership are also bound by one another’s rights, including health insurance, inheritance rights, adoption rights, hospital visitation rights and many other rights (and needs).
Florida law does not provide for legal recognition of domestic partnerships. To put it another way, Florida law does not recognize Domestic Partnership in the same way that it recognizes marriage and doesn’t provide for Domestic Partnership rights the same way it provides for marriage rights.
Many Florida municipalities, however, have recognised the need to provide Domestic Partnership rights for their citizens – more than 1/3 of Florida’s counties and cities provide some sort of Domestic Partnership recognition. The Florida Marriage Recognition act of 2015, which became law on January 6, 2016, repeals Florida’s same-sex marriage ban, and it has resulted in the creation of Domestic Partnerships in those counties and cities that allow them. Florida Statute 2S6.621 requires each County Court to register Domestic Partnerships .
So what happens if I live in a county that does not offer Domestic Partnership? It’s important to understand that you still have obligations and duties that arise from your domestic partnership. Just like in a marriage, Domestic Partner obligations include:
My partner was recently injured while we were traveling for the weekend and I didn’t have a legal right to visit him in the hospital. If he had died, you would not have been able to make funeral arrangements. If you have children, you would need your partner’s permission to enroll them in school. If you move to another jurisdiction, you would need your partner’s permission to purchase a house there.
Historically, a Domestic Partnership was regarded as an informal arrangement to cohabit and share property together but to live apart from the rest of society. A Domestic Partnership was typically a private agreement between two people to keep the courts out of their arrangement. That’s changed with the passage of laws like the Florida Domestic Relations Act of 2011, which set out to establish the basic requirements and rights associated with a Domestic Partnership. Florida is one of the few states to have no recognition whatsoever of Domestic Partnerships on a statewide or local level, but that’s beginning to change.
Legal Advantages and Disadvantages of Domestic Partnerships
As a general rule, domestic partners in Florida do not have the same legal rights and obligations as married couples. That is not to say that there are not some rights. It just means that those rights are fewer in number and limited in scope. While it does not diminish their commitment, these limitations exist regardless of how long a couple has lived together.
Under Florida law, many categories of health care facilities – like hospitals and nursing homes – must allow a resident’s domestic partner access to see the resident just as they would allow access by a spouse. The bill that created this right allows a domestic partner or family member to make or comment on decisions about health care, including end-of-life decisions. However, insofar as people may have durable powers of attorney or living wills, domestic partners do not have the same level of default authority over those issues and do not automatically make the same perfect substitute for spouses.
Moreover, domestic partners are not allowed to make decisions about disposition of remains of their deceased domestic partner, even if the other person signed a directive authorizing the party to be in charge of making those decisions. In that case, the spouse has automatic priority over the domestic partner, just like spouses do over any and all others.
In the property context, the most significant difference between domestic partnerships and marriages is one of respect. Under Florida law, a married person can assign statutory homestead protections to their spouse. That’s not a problem for marital partners because both spouses are then protected by the result. But for domestic partners, one person giving their homestead protection to the other creates a problem because that essentially gives away their only interest in the property. Although domestic partners can use revocable or irrevocable trusts to achieve the same result as the statutory provision for homestead protection, the one holds true only during the grantor’s lifetime and the result requires the work and expense of establishing the trust.
Domestic partners also do not have blanket rights to use property owned by their partner so they must be careful about transferring property interests to the other without a reservation of some right (e.g., a right of survivorship, power of appointment, right to pay necessary costs of the property without reimbursement, etc.). In the practical world, domestic partners need to take charges of attorney or advice from another professional who understands the difference in the law because domestic partners often assume they enjoy the same rights as spouses when the opposite is true in almost all other respects.
How to Set Up a Domestic Partnership in Florida
In Florida, specific steps and forms are required for a domestic partnership registration. Standards and fees vary from county to county, but the first steps are generally the same. The first requirement is to check the website of the county clerk where you wish to register for specific documents or rules. For example, the City of Tallahassee does not have a domestic partnership registry, but Leon County does. Next, couples must fill out the domestic partnership registration statement and schedule an appointment with the county clerk’s office. As rules differ from county to county, you may have to appear in person or you may be able to submit your application by mail or fax. Different counties may have different methods of payment as well. For example, some counties accept only checks or cashier’s checks, while others will accept cash or credit cards. Each partner must bring the forms — including proof like a driver’s license or Social Security card — to the meeting with an acknowledgment form certifying to their names, birthdates and contact information. Couples must also acknowledge that they are financially self-sufficient and do not need to register for any contractual obligation of support. That means they are not getting married in the hopes that the other partner will provide for them financially in times of need. Individual counties may require additional documents. Marriage licenses are still the only commitment recognized in Florida, and that status applies to heterosexual couples as well as those in same-sex relationships. That means registered domestic partners do not have the legal rights enjoyed by married couples. For example, registered domestic partners may not inherit assets in the estate of another domestic partner. A non-legal adult dependent designation is not a domestic partnership registration.
Ending a Domestic Partnership in Florida
Beginning a Domestic Partnership is an important milestone for committed couples; so is the termination of that relationship. Termination, whether due to the passing of one partner or the mutual agreement of both, should not be taken lightly. Because a Domestic Partnership agreement can spell out particular rights and responsibilities of each partner, it is important that the process used for terminating the agreement matches that of the initial process. This can include a required notice period, financial obligations under the agreement, responsibilities for child rearing and custody and division of property and assets.
In many instances the issues are similar to a divorce proceeding. When the partners have filed a Domestic Partnership agreement with their mutual county offices, either party can petition for termination at any time. As in a divorce there are requirements for notice and waiting periods; however, because there is no statutory authority for termination of a Domestic Partnership, this is strictly a matter for the court to decide as they see the issues before them.
Because a Domestic Partnership is much like a marriage, the Dissolution of a Domestic Partnership is also similar to the Dissolution of a Marriage. Another party may seek to become involved in the dissolution and seek to enforce the terms to the original Domestic Partnership agreement. Domestic partners should insist on having an attorney help them navigate this process to ensure that their original agreement is upheld even with termination.
The Effect of Federal Law on Florida Domestic Partnerships
The existence of a Florida domestic partnership raises the question of how federal law treats such relationships. The federal question affects a variety of issues, ranging from the ability to file a joint tax return until death or divorce, to the rights to inherit, to rights of survivorship on death benefits and to dependent health care coverage. The questions prompted by the existence of a federal question could be better answered if domestic partnerships were treated as marriages. In fact, most Florida domestic partnership agreements have arisen out of long-term cohabitation or same-sex relationships which have not been validly married under state law.
While there is no expression in the Constitution which mandates that a legally valid domestic partnership or same-sex marriage be accepted at the federal level, the Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013) struck down a portion of DOMA (the Defense of Marriage Act) which limited the definition of marriage to a union between one man and one woman. The Supreme Court’s ruling actually did not decide if the states must recognize same-sex marriage or domestic partnerships, and while some of the lower federal courts have begun to follow that approach, the majority of rulings today show that the individual states can choose whether to recognize marriages and partnerships.
Where Florida’s domestic partnership exerts its greatest influence in the context of conflicts between state and federal law, is in the arena of taxes and benefits. The Internal Revenue Code defines "spouse" and "marriage" to exclude same-sex couples. The Supreme Court’s opinion in Windsor states, at footnote 12, that if DOMA’s definition of "marriage" and "spouse" are to be given "equal dignity," then those categories and the substantive provisions of federal law related to marriage, must also exclude same-sex relationships . Thus, if same-sex couples are not entitled to marry under state law, then they are equally excluded from the benefits of the federal laws extending to married persons. However, just as under Florida law there is a "partner" and a "domestic partnership," the exclusion at the federal level between marriages and partnerships is not an either/or proposition — it’s not that one category excludes the other. If a person is legally partnered with a same-sex partner in Florida, it is the legal partner under Florida law with whom the person would hold the title to the house, the motor vehicle and the bank account. The property acquired in association with the domestic partnership, will not be subject to the federal estate tax, nor will a gift from one partner to the other be subject to the gift tax.
Additionally, there are also state income tax considerations. In a community property state, the income between spouses is considered community property by default until the spouses agree otherwise, and the same presumption arises in the absence of a written agreement in the absence of a domestic partnership agreement. Florida is not a community property state, so the spouse quickly realizes a benefit derived from a domestic partnership agreement if the income from his or her employment or assets is not in a joint bank account with the other partner.
While there are many areas where the federal benefits to a couple are not available because of the federal definition of marriage, this list is not exhaustive, and they are not all negative. A professional advisor for a domestic partnership agreement can examine the entire spectrum of benefits and protections in consultation with the partners to determine what is appropriate for the parties.
Marriage or Domestic Partnership: A Comparison
There is a lot more at stake when it comes to deciding between marriage and registering domestic partnership. The reasons for seeking domestic partnership are myriad, but so are the implications.
When utilitarian characteristics are compared, one of the biggest differences between marriage and domestic partnership in the state of Florida is the recognition of marriage at the federal level, but the lack thereof when it comes to domestic partnerships.
Marriage is recognized by the federal government. Under Section 2 of the Defense of Marriage Act (DOMA), states are allowed to choose whether or not to recognize same-sex marriages performed in other states. No same-sex couple may sue for recognition of their marriage in a different state.
Although there have been challenges to these restrictions, they have so far held strong under scrutiny. The Department of Defense’s recent announcement allowing military members to claim same-sex spouses as dependents is a step toward legal recognition of same-sex marriages and their recognition in profile databases, but much responsibility for recognition lies with the states.
This means that the federal government applies its own regulations on anything it controls, and the states do the same for their jurisdiction. For this reason, legislation for marriage is state-specific, while domestic partnership licenses are accepted not only by government agencies but also in personal relationships.
One example is that, whereas married persons expected to be granted spousal rights (like the right to make medical decisions for incapacitated spouses) under the law, domestic partners do not.
In deciding whether to pursue marriage or domestic partnership, consider if you would like to avoid the public scrutiny that comes along with your decision. There are a number of good reasons for wanting to keep such a commitment private.
For instance, some people prefer that their relation be their business only. Others want to avoid paying taxes on domestic partner benefits but want the benefits anyway. Finally, some do not want a commitment to be either a point of ridicule or a possible cause of harassment.
Beyond the aforementioned issues, some people also question whether it’s appropriate to pursue a domestic partnership or marriage when they are living in a state where both options are available. It is not illegal for a couple to pursue a domestic partnership even if they could legally marry.
We offer all relevant information and can help you explore your options.
Domestic Partnerships in Florida: Current Issues and the Future
Currently, the law remains unsettled in regards to what rights Domestic Partnerships grant to registrants. For example, are domestic partners eligible for spousal hospice care benefits if one member of the partnership is sick? Registration rules remain ambiguous on this topic.
Nonetheless, the overwhelming sentiment in the press and in many legal circles is that Florida is moving towards recognition of same-sex partnerships. The arguments made to opponents of same-sex partnerships are compelling – namely, that a gay or lesbian couple joins in equal sacrifice and a document memorializing that unity should confer all the rights given to heterosexual couples. The government has no logical basis for denying those rights to members of same-sex partnerships. Moreover, it is hard to think of any other state actor that has proper jurisdiction over the matter. Accordingly, gay rights advocates have taken their battle to local level courts throughout Florida.
Georgia, South Carolina, North Carolina and Arkansas do not recognize same-sex partnerships; however, there is increasing pressure for change. The federal government is pushing states to recognize gay marriage by linking it with federal funding . Many federal tax provisions recognize gay marriage and/or make no distinction based on marital status. If the federal government offers incentives to states that recognize homosexual marriages, it may force recalcitrant states to move towards acceptance of domestic partnerships.
Many state lawmakers hope to circumvent the United States Supreme Court’s ruling on gay marriage. However, Florida’s attempts to sustain its ban on gay marriage may run afoul of US Supreme Court precedent. In Windsor v. United States, 699 F.3d 169 (2nd Cir. 2012), the Court strikied down portions of the Defense of Marriage Act as unconstitutional. Lawmakers in Florida may see the winds of change blowing toward recognition of gay marriage.
One witness to Florida’s changing sentiment is Summer Steele. Steele is a BD of 20 years and a single-parent that believes the children of homosexual parents face stigma akin to the stigma faced by children of a single parent. Steele argues that denying homosexual parents a domestic partnership does the children of such parents a disservice.
Clearly, the sweeping winds of change have finally hit the shores of Florida.