Wisconsin Domestic Partnership Benefits Expanding

On August 3, 2009, Wisconsin recognized domestic partnerships and extended limited rights to registered same-sex couples. Wis. Stats. 770.05(1) defines a domestic partnership shutterstock_171895604“domestic partner” as an individual who has signed and filed a Declaration of Domestic Partnership in the office of the Register of Deeds of the county in which he or she resides.

The Wisconsin Domestic Partnership Chapter’s Declaration of policy in Wis. Stats. 770.001, provides that this statute “does not violate the same-sex marriage ban” including Wisconsin’s constitutional amendment which reads that “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.” In Appling v. Doyle, 2013 WI App 3, 345 Wis. 2d 762, 826 N.W.2d 666, 11-1572, the court found that the legal status of a domestic partnership is not substantially similar to the legal status of marriage.

In order to be registered as domestic partners a couple must meet the following criteria:

  1. Each partner must be 18 years of age.
  2. The partners must be of the same sex.
  3. The partners must share a common household.
  4. The partners cannot have a familial relationship closer than second cousins.
  5. The partners cannot be married or in another domestic partnership.
  6. At least one partner must have been a resident of the county of registration for at least 30 days immediately preceding the application for domestic partnership.

In order to register as domestic partners, each partner must complete the application for the Domestic Partnership Registry. The form must be presented at the County Clerk of Courts office with proof of residence, certified copies of birth certificates, social security numbers, and if you have ever been previously married, a Judgment of Divorce or a certified death certificate for your former spouse. Both partners are required to sign a Declaration of Domestic Partnership. The Clerk of Courts will issue a certified copy of the Declaration of Domestic Partnership after a five day waiting period.

If you register as domestic partners, you are entitled to 43 legal rights and protections including but not limited to the following:

  1. Domestic partners have the right to inherit property from one another, even if the dying partner does not leave a will.
  2. Ability to be awarded by probate court the couple’s home and vehicles that are titled in the name of the deceased partner.
  3. Transfer of real estate titles without paying a fee.
  4. Presumption of joint tenancy in real estate.
  5. Rights related to power of attorney for property and finances.
  6. Family leave for a sick or dying partner. A registered domestic partner who works for an employer with 50 or more employees may take up to two weeks of family and medical leave to care for his or her partner.
  7. Hospital visitation.
  8. Ability to file suit for wrongful death.
  9. Immunity from testifying against partner. The right to confidential communication. A domestic partner can prevent his/her domestic partner from testifying against the partner, so long as the communication was private and occurred during the partnership.
  10. Ability to collect worker’s compensation death benefits.

In addition to the above rights, all active City of Milwaukee employees may include same gender or opposite gender domestic partners on their health or dental plans after completion of a domestic partnership application. State employees have the right to cover their domestic partners on their health insurance plan. Domestic partners of Wisconsin employees who participate in the Wisconsin Retirement System will also receive certain pension benefits. Both the City of Milwaukee and the State of Wisconsin include opposite sex couples in the definition of domestic partners. These City of Milwaukee and State of Wisconsin provisions are provided by a different law than Wisconsin’s Domestic Partnership Registry.

Recently the United States Justice Department implemented a number of same-sex policy changes based on the United States Supreme Court’s June 2013 determination that provisions in the Defense of Marriage Act impermissibly deny federal benefits to lawfully married, same-sex couples. This determination applies to lawfully married, same-sex couples, currently not to domestic partners. Earlier this month Attorney General Eric Holder, Jr., issued a formal policy memo advising that it is the Justice Department’s policy “to recognize lawful same-sex marriages as broadly as possible” and “treat all individuals equally regardless of sexual orientation.” Pursuant to Justice Department policy, same-sex couples will be covered by the spousal privilege; same-sex spouses of police officers or fire fighters killed or injured in the line of duty will be eligible for disability benefits; same-sex couples will be recognized when determining eligibility for payments from the 911 Victim Compensation Fund; the Federal Bureau of Prisons will grant federal inmates of same-sex marriages the rights and privileges provided to married inmates.

The United States Treasury Department is also moving forward with same-sex marriage protections. The Treasury Department and the IRS have agreed that all legally married, gay couples may file joint income tax returns, even if they reside in states that do not recognize same-sex marriage, such as Wisconsin. The Defense Department indicates that it will grant military spousal benefits to same-sex couples. The Attorney General indicated that the Justice Department will recognize same-sex spouses of individuals involved in civil and criminal cases to have the same legal rights of married couples. Even in states where same-sex marriages are not recognized, the federal government will not rely on the state views as the basis to object to someone in a same-sex marriage from invoking protected legal rights. The Justice Department will also encourage judges to allow same-sex married couples to file joint bankruptcy petitions.

Wisconsin also continues to be part of the national scene regarding same-sex litigation. On February 3, 2014, the American Civil Liberties Union (ACLU) announced plans to file a lawsuit on behalf of Virginia Wolf and Carol Schumacher, a same-sex couple married in Minnesota, but living in Wisconsin.  The suit will challenge Wisconsin’s constitutional ban on same-sex marriage. On February 13, 2014, a group of Wisconsin democratic lawmakers introduced a bill to overturn Wisconsin’s same-sex marriage ban. The public is also addressing same-sex marriage. A recent Marquette University Law School poll shows 53% of Wisconsinites are in favor of same-sex marriage, an upward trend that is generally found throughout the United States.

Many domestic partners and their supporters take the position that they are discriminated against because they are unable to fully enjoy the designation and rights of marriage. In contrast, defense of marriage advocates support marriage between one man and one woman. The conflict continues, but the tide has turned toward expansion of same-sex marriage and domestic partnership rights. However, the likelihood of any same-sex marriage litigation being passed in Wisconsin is currently unlikely because of Republican control of the legislature and Capitol.