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.    

According to the 2006 American Community Survey, there are 160,698 self-identified, open, gay and lesbian residents of Wisconsin, or 3.9% of the total state population.[i]   Of the gay and lesbian population, there were 14,894 same-sex couples in the state in 2005.[ii]  Wisconsin experienced an astounding 81% increase in same-sex households from 2000 to 2005.[iii]  These couples will want to protect their relationship with rights and obligations similar to opposite-sex couples.  Unlike married couples, the gay or lesbian couple must consult with an attorney and incur legal expenses to garner just a fraction of the rights afforded to married couples. 

Gay and lesbian partners are denied the right to marry in Wisconsin by statute and Constitutional Amendment.  The following are some documents that could alleviate this disparity between married couples and same-sex couples:

A.        Power of Attorney for Financial Management

The Power of Attorney for Finances is likely the most effective and important financial document between unmarried couples.  The document allows one partner to have the authority to make financial, legal, business and debt management decisions for the other partner.  In most instances, the execution of a Power of Attorney for Finances will eliminate the need for a court appointed guardian for the partner’s estate in the event the partner becomes incapacitated or incompetent.  This is particularly valuable for couples whose relationship is not supported by a partner’s family. 

The partners have three options of when the other partner may exercise authority over the other partner’s legal and financial affairs.  First, the authority can be effective immediately upon the execution of the document.  This is generally known as a “General Durable Power of Attorney” and the partner’s authority commences immediately and continues beyond the other partner’s incapacity or incompetency.  Second, the partners may choose to have the authority vested only upon the finding that the other partner is incapacitated or incompetent.  This is known as a “Springing Power of Attorney” in that the power to act on the other partner’s behalf “springs” upon the incapacity or incompetency of the partner.  Third, the partners could elect to have the authority vested immediately but then cease upon the partner’s incapacity or incompetency.  This seems to be counterintuitive for most unmarried couples and rarely elected. 

B.     Home Ownership

The most significant asset for most couples is their home.  The very definition of unmarried cohabitants is that they live together without the protections of marriage.  The real estate deed plays a more important role for gay and lesbian couples than for married heterosexual couples.  The law bestows an equal interest in the home to a married couple regardless if both names are on the deed.   The same is not true for gay and lesbian couples.  The name on the deed is the person who will own the real estate and the other partner must resort to equitable theories in order to recover any contributions towards the house.  If an unmarried partner moves into the house of the other partner, regardless of the number of years they subsequently live together, the unnamed partner does not own the house. 

The gay or lesbian couple can choose between three common options of how to own their house (ignoring trust planning and real estate holding companies):  First, they can own the property as “tenants in common” which means that each is presumed to own a one-half interest in the property and upon either partner’s death, that partner’s share of the house is distributed according to the deceased partner’s will, trust or intestacy.  This can be a disaster for the surviving partner if the deceased partner did not have a will and the surviving partner suddenly owns his or her house with a distant relative of the deceased partner.  The surviving partner will need to buy out the relative’s one-half share of the house if he or she wishes to stay living in the house. 

Second, they can own the property as “joint tenants with rights of survivorship” which means that the deceased partner’s share automatically, by operation of the law, is bequeathed to the surviving partner outside of probate.  This is generally the option favored by most unmarried couples. 

Finally, same-sex couples have the option of owning property as “domestic partners” which includes the right of survivorship.  The couple must be registered with the State of Wisconsin in order to own property as domestic partners. 

There can be tax consequences for a gay and lesbian couple in doing any of the above.  If one of the partners owned the house prior to the relationship, then that partner must execute a Quit Claim Deed to both partners as either tenants in common, joint tenancy, or as domestic partners.  In doing so, a Transfer Tax Return must be completed and a tax of 003% of the fair market value of the house is due unless they are registered domestic partners.   

There are also gift tax implications.  When the partner executes a Quit Claim Deed, he or she is essentially gifting one-half of the current equity in the home to the new partner.  Depending on the amount of equity, this transfer may need to be reported on the partner’s lifetime gift exemption.  It is also important for the partner who is transferring his or her interest in the real estate to realize that the other partner can claim one-half of the equity in the home if the couple breakup. 

Finally, the transfer of the real estate deed from one partner to both partners does not impact the mortgage.  The mortgage will still be held in the original partner’s name unless they refinance the mortgage together as a couple.  Until that happens, only the partner who is on the mortgage will be able to deduct the mortgage interest on his or her taxes.

C.     Power of Attorney for Healthcare

A gay or lesbian partner does not have access to his or her partner in the hospital without taking some affirmative steps including the execution of a Power of Attorney for Healthcare.  A Power of Attorney for Healthcare allows the partner to designate his or her partner to make medical decisions on his or her behalf in the event he or she becomes incapacitated or incompetent. 

Unlike the Power of Attorney for Finances, the Power of Attorney for Healthcare becomes effective only upon the partner’s medical diagnosis of incapacity or incompetency.  Once the agent can act on behalf of his or her partner, he or she must exercise “substitute judgment” in that he or she should make decisions based upon what he or she believes the partner would have elected under the circumstances. 

The Power of Attorney for Healthcare has its limitations.  First, the partner must be accessed incompetent or incapacitated by two physicians or one physician and one psychologist.  This procedure can be burdensome when end of life decisions are needed to be made and time is of the essence.  Second, the Power of Attorney for Healthcare is silent about the partner’s right to visit the other partner in the hospital if the partner is not incompetent or incapacitated.  A partner does not want to be limited to “visitation hours.”  They want to provide comfort and company to their partner equal to a spouse.  In order to assure immediate, continuous companionship in the hospital, it is recommended that the partners afford themselves of the protection of HFS 124.05.  This administrative code allows a person to designate individuals who can visit him or her in the hospital or nursing home regardless of his or her incapacity or incompetency.   The Power of Attorney for Health Care can include this provision or a separate document can be created specific to HFS 124.05.   

D.     Living Will

The Living Will is the partner’s declaration to his or her physicians, family, and partner about his or her end of life decisions.  The question of whether to use artificial life support under certain situations and conditions are specified in the Living Will.  The importance of this document cannot be underestimated and is true for everyone whether married, in a gay or lesbian relationship, or single. Although this document does not create any legal rights or obligations between unmarried couples, it is a vital document each partner should consider in establishing an estate plan.   

E.     Final Disposition Directive

The law presumes that the next of kin of a deceased person can make decisions regarding the funeral arrangements, visitation, memorial service, and disposition of remains.  Once again, the gay or lesbian partner has no legal standing or rights to participate in these decisions even if they have been in a committed relationship with the deceased partner for many years. 

Some people believe that a provision in the Power of Attorney for Health Care, Power of Attorney for Finances or a Will that addresses the client’s wishes regarding their funeral will resolve the issue.  This is not entirely accurate.  The Power of Attorneys are not enforceable upon the death of the client so the agent really should not be allowed to make decisions regarding the decedent under the authority of these documents.  The personal representative under the will could make these decisions, however, the will is generally not found or consulted until after the funeral.  Additionally, the personal representative cannot make decisions regarding the decedent until he or she receives the letters of domiciliary from the court which will undoubtedly occur after the funeral.   

Gay and lesbian partners should consider executing a Final Disposition Directive under Wis. Stat. §154.30.  This directive allows a person to designate his or her partner as the person responsible for all of the immediate issues that occur upon a partner’s death including the option for cremation. 

F.     Wills and Trusts

Wills and trusts are important estate planning documents for anyone, but they serve an added importance to gay and lesbian partners.  Unlike spouses, unmarried or unregistered domestic partners are not included in the chain of intestacy established under the law.  The unmarried partner is considered a stranger under probate law and will not receive any of the decedent’s probate property.  This can be quite troublesome even for partners with limited estates.  The family of the decedent could arrive at the partners’ home and pick through personal belongings and claim that they belong exclusively to the decedent or shared with the surviving partner of who must then buy-out his or her share from the decedent’s family. 

NOTE:  Registered domestic partners with the state of Wisconsin are considered an equivalent to a spouse in the chain of intestacy.  This option is only available to gay and lesbian domestic partners. 

The Will or Trust also provides the opportunity for the partner to nominate the other partner the guardian of any children the couple may be raising.  The partners need to understand that the nomination is only that – a nomination. It is highly unlikely the Court would appoint the partner a guardian for any child who has a surviving parent from a previous relationship.    

Any will that appoints a spouse or domestic partner as personal representative or designates them as a beneficiary is void upon divorce or the filing of a termination of domestic partnership with the state.  The same is not true for unregistered gay and lesbian partners.  It is important that the gay and lesbian couple who terminate their relationship also take the affirmative step of repudiating their estate plans. 

G.     Partnership Agreements

 A partnership agreement is simply a contract between two parties.  In this context, the term “partner” does not reflect the partners’ decision to share their lives together, rather, the term “partners” is in the business sense.  If there is a breach of the partnership agreement or someone seeks enforcement of the agreement, the claim will be heard in civil court and not family court.  The law applied to the partnership agreement will be contract law.  The fact that the parties were in love with one another will have no relevance to the distribution of assets upon the dissolution of the partnership.

EXAMPLE:  Jane and Susan dated for several years and decide to move into together.  Since Jane rented an apartment, she decided to move into Susan’s house.  At the time of the cohabitation, Susan had $20,000 of equity in the home.  The partners agreed that they would have a joint household account of which both partners would contribute 50% of her individual income.  Susan’s income was higher than Jane’s income so her one-half was greater than Jane’s contribution.  The partners decide to meet with a lawyer to prepare documents to affirm their relationship and to recognize each partner’s contributions to the relationship.  The partnership agreement could include a term that upon the dissolution of the partnership, Susan will receive $20,000 more in equity from the house.  Additionally, Susan could receive 60% of the appreciated value of the house during the partnership and Jane could receive 40% of the appreciated value, based upon the disparity in each partner’s contribution to the household account. 

The terms of the partnership agreement can also include who will be awarded the house if the partnership dissolves; what must occur for the partnership to dissolve (i.e. written notice to other partner, one partner moving out, etc.); an agreement to arbitrate or mediate any disputes, the awarding of any dogs or cats, and the duty to refinance the mortgage within so many days.  

H.    Parenting Agreements

A partner cannot unilaterally bestow parental rights to the other partner.  At most, the parent can sign releases authorizing third parties to release information to the partner; nominate the partner as the guardian for the child in his or her will; execute a standby guardianship, or enter into a Parenting Agreement which has limited legal enforcement.  Anything beyond these documents would require a court proceeding where the Court creates a legal relationship between the other partner and the child. 

The seminal case regarding parenting agreements in Wisconsin is In re the Custody of H.S.H.-K, 193 Wis.2d 649, 533 N.W.2d 419).   In that case, a lesbian couple had a child together by artificial insemination.  After ten years together, the couple broke up and the non-biological mother sought custody and placement of the minor child.  The biological mother refused to share custody or placement with the ex-partner.  The biological mother argued that such agreements are against public policy.  The Wisconsin Supreme Court agreed that a parent cannot contract away his or her custodial rights, however, the Court did find that co-parent agreements regarding visitation are not against public policy so long as the agreement is in the child’s best interests.  A parenting agreement can be a consideration for the Court in determining the child’s visitation with the partner.  Co-parenting agreements do not guarantee outcomes, rather, they serve as evidence of the intent of the parties in raising a child together and what should occur if their relationship ends. 

I.     Standby Guardianship/Guardianship

The nomination of the partner as the child’s guardian in a will provides the couple limited protection.  The nomination is just that – a nomination and not an appointment.  Additionally, the appointment of a guardian under probate may take some time and there could be disputes with family members of where the child should reside until the court makes a decision on the child’s guardian. 

A relatively inexpensive option for unmarried partners is to have the legally recognized parent execute a Standby Guardianship under Wis. Stat. § 48.978(3)(b)(2).  Rather than merely a nomination, this document appoints the partner as the child’s guardian upon the incapacity, debilitation or death of the parent.  Once the event giving rise to the guardianship occurs, the guardian has a 180 days to petition the Court to become the child’s permanent guardian.  Unlike a nomination in a will, the Standby Guardianship appointment allows the partner to be the guardian of the child in the event that the biological parent is unable due to incapacity or incompetency to care for the child.   

NOTE:  The guardianship cannot sever the rights of a biological parent.  For example, if a partner has a child from a previous marriage, the child’s other parent will still have all of his or her rights which supersede any nominations or appointments of a guardian.  

The limitation of a Standby Guardianship is that it becomes effective only if the biological parent is unable to care for the child.  Most partners want to have these rights even when the biological parent is fully competent and able to raise his or her child.  For this reason, most couples do not want to solely rely on the standby guardianship and wish to proceed with a guardianship proceeding. 

A guardianship proceeding under Wis. Ch. 54 requires the appointment of a guardian ad litem and a court hearing.  The prospect of a court proceeding and a guardian ad litem deters some couples from proceeding with the guardianship, however, it may be the best option for the other partner to have a legal relationship to the child. 

In the event of the partners’ relationship terminates, the biological parent can always petition the Court to terminate the other partner’s guardianship of the child.  The legal standard is not whether the continuation of the guardianship is in the child’s best interest, but rather, whether the biological parent is “unfit or unable to care for the child.”  Absent a compelling reason such as abandonment, neglect or abuse, the partner who is not the child’s biological parent will have a very difficult time preventing the termination of his or her guardianship of the child. 

J.     Domestic Partnerships

On August 3, 2009, Wisconsin granted same-sex couples the right to register as domestic partners.  Once registered, the partners will enjoy 43  rights previously denied to them.   

In order to qualify 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.

The couple will need to register at their local county clerk’s office.  There is a filing fee of approximately $150 dollars and they will each need to provide:

1. Proof of residence in Wisconsin.
2. Proof of identification.
3. Certified copies of birth certificates.
4. Proof of Social Security Numbers.
5. If either partner was previously married, they will need to provide documentation of the partner’s divorce or the death of the former spouse.

Once the above documentation is verified, the application fee is paid and the application is signed before a notary, the application is filed with the Register of Deed’s Office.           

A person who is not open about their sexual orientation should be advised that the domestic partnership registry is a public record and may be available for inspection. 

A summary of the more significant rights provided to same-sex partners under the domestic partnership registry are as follows:

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. 

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.”  An asset titled or deeded as “domestic partners” will have the same effect as “joint tenants with rights of survivorship.”  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. 

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

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.  

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. A fee is also required to be paid in order to terminate the domestic partnership.  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. 

The domestic partnership law is silent about how the partners are to divide their property after the termination of their relationship.  Divorce law is not available to them. 

[i]  Same-Sex Couples and the Gay, Lesbian, Bisexual Population: New Estimates from the American Community Survey, The Williams Institute, Law and Public Policy, UCLA School of Law (October 2006).

[ii]  Supra note 2.

[iii]  Supra note 2, (New Hampshire was the only state that experienced a higher increase in gay and lesbian couples with a 106% increase from 2000 to 2005.)