Domestic Partnership Benefits in Wisconsin: FAQs
Important Notice: The following outline is intended as general legal information only and not legal advice specific to the reader’s situation. The reader is advised to consult with an attorney on whether the following information is applicable or appropriate to his or her situation. This outline does not create an attorney-client relationship with the reader and no legal advice is being rendered specific to the reader’s situation. Please consult Balisle & Roberson, S.C. if you wish for advice specific to your situation. The law is complex with many exceptions and nuisances and this outline does not exhaustively address all of the issues that may arise in your situation. The Outline is not a substitute for legal counsel.
On August 3, 2009, Wisconsin continued its rich tradition of being a progressive state by enacting the Domestic Partnership Registry. Couples who register as domestic partners will receive some important legal rights that have never been available to them prior to the enactment of the Domestic Partnership Registry.
Balisle & Roberson, S.C. fully supports this important step toward equality for gay men and lesbians in Wisconsin. Our attorneys are available to answer any questions you may have about the 43 rights provided under the Domestic Partnership Registry and the legal documents you should consider to supplement these rights.
The following is a brief overview of the domestic partnership rights in Wisconsin and answers to the most commonly asked questions about these rights. The following is for information purposes only and should not be construed as legal advice. We encourage you to contact our firm if you have any questions specific to your situation and whether the Domestic Partnership Registry will meet all of your family’s legal needs.
Who can register as domestic partners?
A couple must meet all of the following qualifications to register as domestic partners:
- Each partner must be 18 years of age.
- The partners must be of the same sex
- The partners must share a common household.
- The partners cannot have a familial relationship closer than second cousins.
- The partners cannot be married or in another domestic partnership.
- 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.
My partner and I live together but only my partner’s name is on the deed to the house. Do we still qualify as sharing a “common household?”
Yes. The Domestic Partnership Registry does not require that both of you are on the deed of your home to be eligible to receive domestic partnership benefits.
My partner attends college away from our residence and lives during the school year on campus. Do we still share a “common household?”
Yes. As long as your partner intends to return to the common residence, you may register as domestic partners. The State’s definition of a “common household” includes couples where one partner may temporarily reside in a second residence provided that the partner intends to return to the common residence.
My partner and I were married in Connecticut. Can we register as domestic partners in Wisconsin?
The domestic partnership legislation states that neither domestic partner may be married. It does not clarify whether the partner is prohibited from entering into a domestic partnership if that marriage is not recognized in Wisconsin (i.e. same-sex marriage). This is an issue that may need to be decided by future legislation or the courts. It is reasonable that a marriage that is not recognized in the state of Wisconsin for any purpose should also not be recognized as a marriage for purpose of eligibility to register as domestic partners.
My partner is transgender. Can we register as domestic partners?
The domestic partnership legislation is silent about transgender individuals and the requirement of being of the same-sex. This question may need to be resolved by future legislation or a court decision. Since each partner must present a birth certificate at the time that they register as domestic partners, it is reasonable that the State may rely on the gender identified on the birth certificates in determining if the couple is of the same sex.
Where should we go to register as domestic partners?
You will need to arrive at your county clerk’s office to receive the application for the domestic partnership registry and then once you have completed the form, you will be instructed to file the form with the Register of Deed’s office.
What should we bring with us to register as domestic partners?
You will each need to bring with you the following:
- Proof of residence and identification.
- Certified copies of your birth certificates and Social Security Numbers.
- If you have been previously married, you will need your divorce judgment or a
certified death certificate for any deceased spouse.
What will we need to do at the time we register as domestic partners?
You will both need to sign a Declaration of Domestic Partnership in front of a notary and file the document with the Register of Deed’s Office. The Register of Deed may charge a fee for filing the Declaration of Domestic Partnership and for any certified copies requested. The fee is not set by statute but will likely be similar to the fee for a marriage certificate.
The clerk will issue a certified copy of your Declaration of Domestic Partnership after a five-day waiting period. The county may waive the waiting period for an additional fee of up to $10.00.
Do my partner and I have to “come out” in order to be domestic partners?
The Declaration of Domestic Partnership is a vital record of the state and is available for public inspection. You will not be able to keep your relationship confidential if you wish to register with the Domestic Partnership Registry.
What are the legal rights that we will gain if we register as domestic partners?
Domestic partners are entitled to 43 legal rights and protections that address a wide array of different issues and contexts. For a complete list of these rights, please contact Balisle & Roberson, S.C., and we will be happy to provide you with a complete summary of all the rights. The following are a few of the most commonly cited rights:
Inheritance. Domestic partners have the right to inherit property from one another even if a partner dies without a will. Previously, a gay or lesbian partner was considered a legal stranger under the laws of intestate succession. Now, registered domestic partners are automatically considered heirs.
Family and Medical Leave. The Domestic Partnership Registry recognizes same-sex partners as family members qualifying for family and medical leave rights. If your partner has a serious health condition, you can take time from work to care for your partner. Currently, a registered domestic partner who works for an employer that employs more than 50 employees can take up to two weeks of leave to care for his or her partner.
Wrongful Death Actions. In the event a domestic partner dies due to the negligence, recklessness or the intentional act of another person, the surviving domestic partner may sue that individual or corporation for the wrongful death of his or her partner. Previously, this claim was available to only spouses and certain family members.
Worker’s Compensation Death Benefits. A registered domestic partner can receive death benefits if his or her domestic partner dies due to a work-related accident or occupational disease.
Owning Property with Right of Survivorship. Same sex couples can now own property as “domestic partners.” If a deed or title lists your names as “domestic partners,” the law will now entitle you to the “right of survivorship.” The right of survivorship means that when one partner dies, the deceased partner’s share automatically transfers to the surviving partner outside of probate.
During both partners’ lifetimes, the partners own an equal undivided interest in the property.
Evidentiary Privilege. Domestic partners have the right to confidential communications with one another that used to be available only to spouses, known as the “spousal privilege.” A domestic partner can prevent a previous or current domestic partner from testifying against the partner so long as the communication was private and occurred during the domestic partnership.
Right to Visit in Care Facility. A registered domestic partner will have the same right as a spouse to visit a domestic partner in an adult family home, residential care apartment complex, community-based residential facility, nursing home, hospital, or hospice.
Consent for Admission. A registered domestic partner can admit an incapacitated partner from a hospital to a nursing home, community-based residential facility or hospice. Previously, a same-sex partner would need to be the incapacitated partner’s health care agent under a previously executed Power of Attorney for Health Care. If the incapacitated partner did not execute a Power of Attorney for Health Care, the partner would be required to seek a guardianship in court.
Access to Mental Health Care Records. Under limited situations, a domestic partner has the right to access a domestic partner’s mental health care records. For example, a domestic partner will be permitted to review a partner’s treatment records if the domestic partner directly monitors the treatment of the partner for a mental illness or a developmental disability. In addition, an inpatient facility must inform the domestic partner of the partner’s admission unless the domestic partner specifically requests that this information be withheld from the other partner.
Termination of Appointment for Health Care and Financial Decisions. If a domestic partner appoints his or her partner as an agent under a Power of Attorney for Health Care or a Financial Power of Attorney and the domestic partnership is terminated, the appointments under these two documents become null and void as to the ex-domestic partner. Once the domestic partnership is terminated, neither domestic partner will be able to make decisions for the other partner under a Power of Attorney. Previously, if a person appointed his or her partner as the agent under these documents and the relationship ended, the appointment of the partner continued even after the relationship until the partner took affirmative legal action to revoke the Power of Attorney.
Consent to Make Anatomical Gift. A registered domestic partner can consent to the donation of a partner’s organs for transplantation, therapy, research, or education, so long as the other partner is near death or has died without the designation of a different agent to make this decision.
Exempt From Real Estate Transfer Fee. Registered domestic partners can now convey real estate between one another without paying the real estate transfer tax fee (presently, .003% of the fair market value of the real estate). Previously, a partner who wanted to add his or her partner to the deed of their house had to pay the transfer tax fee even though there was no real “sale” that occurred between the partners.
My partner and I have been together for 10 years and hold ourselves out as “domestic partners,” are we entitled to the domestic partnership rights?
No. “Domestic partnership” is now a legal status that is created only by registering with the state. In order to enjoy the benefits of being a domestic partner under these laws, you and your partner must register as domestic partners. Until the general population becomes familiar with the concept of “domestic partners,” you may want to keep handy a certified copy of your Declaration of Partnership as proof of your domestic partnership. If you experience any problems with a person, business or institution not recognizing your domestic partnership, please contact one of our attorneys at Balisle & Roberson, S.C., for assistance.
If my partner and I register as domestic partners, do we still need to consider a will or trust?
Yes. A will or trust allows you to do more than provide just for your partner. There are many reasons for wanting to execute a will or trust. Here are a few:
- If you have children from a previous relationship, you will likely want to provide a certain percentage of the estate for both your partner and children.
- If there is certain personal property that you want to give to a friend or family member, you can do this through a will. For example, if you have a family heirloom that should remain in the family or if a friend has always admired a piece of artwork you purchased, then you can make sure that they receive these items through a will.
- If you want to make any special cash bequests to certain individuals, you will want to execute a will or trust.
- If you want to donate any portion of your estate to a charity, you will need a will or trust.
- If you have any minor children, you will want to nominate a guardian for your children even if the nomination is for your domestic partner to be the guardian.
- If you have a minor child at the time of your death, you will likely want to create a trust for the child.
- If you want to maintain privacy about your estate and beneficiaries, you can do so by creating a trust.
- If you and your domestic partner die simultaneously, the will can provide for alternative beneficiaries.
- If you want to designate a personal representative, or commonly known as an “executor,” to be sure your estate is distributed as you wish, you can do so in your will.
- If you want your restate to be distributed with a minimum of effort and expense, a will permits the use of informal probate procedures and a trust may bypass the probate process completely.
The Domestic Partnership Registry does not negate the need to consult with an attorney about drafting a will or trust.
Can I cover my domestic partner on my health insurance plan?
It depends. The Domestic Partnership Registry does not require employers or insurance companies to offer health insurance to domestic partners. Nevertheless, many private companies recognize the value of attracting a diverse talented group of employees and voluntarily offer health insurance benefits for domestic partners. You will want to check with your human resources department to see if your insurance plan offers benefits to same-sex domestic partners. If so, be sure to be aware of the tax implications of the health benefits paid on behalf of your domestic partner. We recommend you contact an attorney with Balisle & Roberson, S.C., or an accountant who is well versed in domestic partnership benefits.
Effective in January of 2010, state employees will have the right to cover their domestic partner on their health insurance plan. In addition, domestic partners of state employees who participate in the Wisconsin Retirement System will also be able to receive certain pension benefits. This is a different law from the Domestic Partnership Registry and includes opposite-sex couples in its definition of “domestic partners.”
How can I be sure that I can make health care decisions for my domestic partner if he or she becomes incapacitated or incompetent?
A domestic partner’s rights regarding his or her partner’s health care is still limited. A domestic partner will be able to visit his or her partner in a medical facility and under limited circumstances, obtain some of the domestic partner’s medical records. The rights of the domestic partner, however, are not a substitute for the appointment of an agent under a Power of Attorney for Health Care.
The Power of Attorney for Health Care allows a domestic partner to appoint the other partner to make medical decisions on his or her behalf in the event of his or her incapacity or incompetency. If a domestic partner wants to make sure that his or her partner can consult with the partner’s physicians and has the authority to make decisions regarding the partner’s health care, the domestic partners should consult with an attorney about the need for a Power of Attorney for Health Care.
Should we still consider a Living Will if we are registered domestic partners?
Yes. A Living Will is a legal document that directs your physicians about end-of-life decisions such as whether you want artificial life support in the advanced stages of a terminal condition or a persistent vegetative state. The Living Will should not be confused with a will which disposes of your property at death or a Power of Attorney for Healthcare which appoints a person to make medical decisions for you in the event you become incapacitated or incompetent. You should still consult with an attorney on whether a Living Will is advisable for you even if you and your partner are registered with the domestic partnership registry. The fact that you are domestic partners does not add or take away this right to execute a Living Will.
When should my domestic partner and I consider executing a Financial Power of Attorney for Finances?
The domestic partnership registry does not grant the same rights as an agent under a Power of Attorney for Finances. The Power of Attorney for Finances, also known commonly as a General Durable Power of Attorney, allows a person to appoint another person to act on his/her behalf in a variety of financial, administrative and legal contexts. For example, a person’s agent can act on the person’s behalf in paying bills, writing checks, negotiating with creditors, making gifts, dealing with government agencies, and hiring professionals such as accountants and lawyers. A domestic partner does not have the authority to make all of these decisions for his or her partner. Same-sex couples who are registered domestic partners can still benefit greatly by executing a Power of Attorney for Finances.
If my domestic partner and I move to another state, will that state recognize our domestic partnership?
Likely,no. The rights provided under our Domestic Partnership Registry are specific to the state of Wisconsin. Domestic partners who move to another state will need to check with an attorney in that state to determine whether that state affords any recognition of an out-of-state domestic partnership. This is true even if the other state also has a domestic partnership registry Each state will have different eligibility requirements and unique rights associated with the legal status of “domestic partner.” Unlike a marriage, another state will not necessarily recognize domestic partnerships from Wisconsin.
The same is true for couples who registered as domestic partners in another state and move to Wisconsin. The Wisconsin Domestic Partnership Registry is silent on whether it will recognize these out-of-state partnerships.
What rights does the Domestic Partnership Registry NOT provide domestic partners?
The Domestic Partnership Registry is not a substitute for or equivalent to marriage. Marriage provides over 200 state rights. The Domestic Partnership Registry provides 43. A few of the rights that the Domestic Partnership Registry does NOT provide domestic partners include:
- Domestic partners do not enjoy the comprehensive property system that applies to spouses under marital property law. The marital property system addresses rights to property ownership, management and control of property, access to credit, creditor and debtor rights, marriage agreements, and interspousal remedies.
- Domestic partners do not have any of the rights associated with divorce law. Domestic partners will not be able to rely on divorce law in dividing any property at the termination of their domestic partnership including the presumption of an equal division of the divisible marital estate.
- Domestic partners do not have any duty of support to one another during the relationship or at the termination of the relationship. Spouses in a marriage have a duty to support one another during the marriage and generally at divorce.
- Domestic partners do not have the right to file joint state or federal tax returns.
- Domestic partners have none of the legal rights afforded to spouses under federal law.
- The Domestic Partnership Registry does not grant any rights or responsibilities to a child of a domestic partner.
- The status of “domestic partners” does not grant the partners any adoption rights.
What if my domestic partner and I break up?
A domestic partner may terminate the domestic partnership by filing a completed Notice of Termination of Domestic Partnership with the same county clerk that issued the Declaration of Domestic Partnership. Both partners may sign and file this termination but one partner may do so alone.
If only one partner files for the termination of the domestic partnership, he or she must serve the other partner with notice that the termination is being filed with the county clerk. The domestic partner will have to certify with the county clerk that the other partner received due notice under the law before the clerk will grant a termination of the domestic partnership. You will also need to pay a fee to terminate the domestic partnership.
If you want to make sure that you give proper notice of your intent to terminate the domestic partnership, please feel free to contact one of the attorneys at Balisle & Roberson, S.C., for information on how to give proper notice.
If I terminate my domestic partnership, when does it become effective?
It will become effective 90 days after the Certificate of Termination is recorded with the county clerk, except that if a partner enters into a marriage recognized as valid in this state during this time, the domestic partnership automatically terminates on the date of the marriage.
Once the domestic partnership is terminated, neither partner will have the rights afforded under the domestic partnership registry and any designation of either partner as an agent under a Power of Attorney for Health Care or Financial Power of Attorney or a beneficiary under a will or life insurance policy is null and void.
If you own property on a deed or title as “domestic partners” and the partnership is terminated, the law is silent on how you own the property after the relationship ends. It is reasonable that the partners will own the property as tenants in common. What this means is that each ex-partner now owns a presumptive 50% interest in the property and that there is no longer any right of survivorship between the partners. Each partner’s one-half share would transfer upon death under the partner’s will or to his or her closest heir under intestacy.
If you and your domestic partner have decided to end your relationship and you have questions of how to divide your property, one of our attorneys at Balisle & Roberson,S.C., is available to assist you.
How would my partner and I divide our property if we end our domestic partnership?
Divorce law is not available to domestic partners nor has the Domestic Partnership Registry provided any guidance to domestic partners as to how to divide property after the relationship ends. Same-sex couples who are contemplating a domestic partnership may want to consider a Partnership Agreement that addresses how the partners will conduct their financial affairs during their relationship and how they will divide the property if the relationship ends. The attorneys at Balisle & Roberson, S.C. are knowledgeable about these Partnership Agreements and would be happy to assist you.
I want to end my relationship with my domestic partner but I have a significant relationship with my partner’s child. Do I have any rights to maintain a relationship with my partner’s child?
The Domestic Partnership Registry does not provide you any custodial, placement or visitation rights to your partner’s child. A Court, however, is not limited to the Domestic Partnership Registry for guidance and can rely on its equitable authority to grant you visitation with your partner’s child. The court will need to determine, among other things, whether you had a parent-child like relationship with the child; whether there exists a significant bond between you and the child; whether your domestic partner encouraged your relationship with the child; whether you shared a common household with the child, and whether you contributed to the support of the child. The Court must find that you meet all of these criteria and that it is in the child’s best interest to grant visitation.
The Court will also need to determine if there was a “triggering event” in your relationship with your domestic partner that prevented you from seeing the child. The triggering event may occur when you and your partner establish separate living quarters or you receive notice of the Termination of Domestic Partnership. It is important to request visitation soon after this “triggering event” to guarantee your rights to seek visitation. If you find yourself in this situation, our attorneys are experienced in this area of law and are available to assist you.