Overview of Domestic Partnerships
In the state of Florida, a domestic partnership is defined as a formal commitment between two individuals to share one another’s lives and take on responsibility for each other’s welfare and financial obligations. It is one of several legal mechanisms sometimes used to extend recognition to same-sex relationships, offering some of the same rights and responsibilities of marriage without actually being a marriage. While married couples benefit from a variety of rights with regard to their spouse as outlined in state law, same-sex couples and non-married opposite-sex couples are not privy to those rights , and cannot simply enjoy all of those benefits by marrying and considering themselves a married couple under Florida law.
This is why some Florida counties have passed legislation allowing for domestic partnerships, which are legally recognized arrangements whereby two people enter into a government-approved contract outlining their relationship, assuming certain responsibilities related to that relationship. Domestic partnerships extend a variety of rights to persons who enter into such an arrangement – especially for health insurance, as business-sponsored plans only recognize married couples as beneficiaries.
Domestic Partnering in Florida
The passage of the 2010 "Domestic Partnership Benefits and Obligations Act" (DPBOA) outlawed discrimination against same sex couples by state government employees by requiring the bride and groom to treat one another as "spouse" in the same manner that opposite sex couples do. "Spouse" is defined as a party to a marriage, and "spousal benefits" are defined as the same benefits provided to spouses under the Florida Statute 421(b).
The DPBOA also prohibits discrimination on the basis of domestic partner status for employers who receive governmental funds, grants, or contracts. Governmental contractors must extend employment benefits to domestic partners, so long as the contractor provides employment benefits to spouses of employees. Any employer who refuses to extend employment benefits to domestic partners is subject to losing its government contract or grant.
Broward County enacted a similar bill in 2013, known as the "Domestic Partner Health Insurance Benefits Amendment," which requires the county to offer health benefits to domestic partners of the employee should the employer offer health benefits to spouses. The bill requires that the partners either be same-sex or opposite-sex. The bill is not popular with voters, and has received considerable opposition over the years.
Miami-Dade County passed legislation to provide domestic partnerships the same marriage benefits in January 2014. Domestic partners are entitled to the same benefits as married couples. However, it was only applicable to registered partners. Miami-Dade does not recognize any other domestic partnership, as seen in the Broward County ordinance.
Domestic Partnership Rights & Obligations
Partnerships confer a host of important rights and responsibilities upon partners. A partner in a domestic partnership will be able to make healthcare decisions for the other partner. This includes being present when the other partner is receiving care, being informed of the other partner’s condition, have access to the partner’s medical records, and make end-of-life decisions on behalf of the partner.
Additionally, a deed for property held as tenants by the entireties (tenants by the entireties refers to a deed that lists two partners as owning the property together, while leaving out the language designating how the property would pass on if one partner dies – which is the language creating a "right of survivorship") will automatically convert to a deed for property held by tenants in common. This change means, that if one partner dies, the transfer of the property to the other partner will still be subject to probate. The surviving partner, though, will have priority to succeed to the decedent’s share of the property in probate proceedings.
Partnerships also confer various other legal benefits, such as rights to inherit from the estate of the deceased partner, and the right to enter into contracts that are enforced like they otherwise would, with the exception of providing benefits to the surviving partner under workers’ compensation laws and through insurance claims (in these cases survivor benefits are limited to legitimate spouses only).
Domestic Partnership Registration in Florida
To establish a Florida domestic partnership, one must follow a specific step-by-step process. First, both partners must confirm their eligibility. According to current law, eligibility criteria generally include being a same-sex couple who shares a permanent residence in the State of Florida and being 18 years of age or older. The partners should not be blood relatives within a certain degree or already married or registered in another domestic partnership.
Next, both partners must complete a Registration Statement for a Domestic Partnership. This statement is a formal declaration that includes basic identifying information such as names, addresses, and social security numbers. Depending on the county, registration may be required at the Clerk of Court’s office, the Tax Collector’s office, the health department, or a state agency.
Additionally, the couple must file a Declaration of Domestic Partnership Agreement, which outlines the rights and responsibilities of each partner. Finally, the couple may choose to file for a Certificate of Domestic Partnership to have formal recognition of their union. The process and requirements may vary or be updated, and it is important to check with local ordinances and laws for exact requirements.
Common Domestic Partnership Myths
The most common misconception I hear from same-sex couple is that they cannot legally "marry" ("domestic partnership" is often the term used in discussing alternatives to marriage). Not true. At the time domestic partnerships were created in Florida, a marriage between same-sex couple was not legal in our state. But now it is, and given the Supreme Court ruling, it likely will continue to be legal. However, some couples do not wish to marry for a myriad of reasons including religion, public image and even financial considerations. The LGBT community remains a minority in terms of income and wealth. So it makes sense to reserve the funds ordinarily spent on weddings and simply enter into a domestic partnership.
A second misconception is that a domestic partnership and civil union are the same. Not true . Domestic partnership is a type of legal relationship. A civil union is a type of legal marriage for same-sex couples. Domestic partnerships come with certain rights and privileges. However, a civil union provides for all the rights of marriage, with the exception of federal tax benefits, and recognizes the domestic partners as spouses.
A third misconception is that domestic partnership agreements are unavailable in most states. Not so. Several states provide domestic partnership agreements that afford same-sex couples many rights that legally married couples have. Alaska, Colorado, California, Maryland, Maine, New Jersey, New Mexico, Oregon, Rhode Island, Washington, and Hawaii already have these agreements in place. In many of these agreements, the couple may choose whether to exchange their name or maintain their current name.
Domestic Partnerships vs. Marriage
The distinctions between domestic partnerships and marriage can cause confusion, especially when both options are present. Some of the differences in Florida include the following:
- A domestic partnership gives the parties the right to designate mutual health care decisions; whereas, in a marriage both may be presumed to have such authority.
- A Florida domestic partnership is created by filing a Declaration of Domestic Partnership with the local Clerk of Courts, and it may be terminated by a Certificate of Termination of Domestic Partnership filed with the local Clerk of Courts. A marriage may be created by a marriage license and a wedding ceremony, and may be terminated by a petition for dissolution of marriage filed with a circuit court judge, in accordance with the Florida Statutes.
- A domestic partnership does not have any implications for death or incapacity. Each party is presumed to be intestate with regard to the other’s estate in the absence of a Will. In contrast, spouses fall under the Florida Intestacy Statutes. There are obligations, entitlements and disincentives resulting from the termination of a marriage that fall under the Florida Marital and Homestead Statutes, that are not applicable to domestic partners.
Overall, both domestic partnerships and marriages provide legal rights and social recognition to couples that enable them to formalize their relationships. The distinctions between the two options largely arise from current state law and cannot be avoided absent changes to those laws.
Changes & Future Considerations
Over the past several years, there have been several significant changes to domestic partnership laws in Florida. In 2014, Orange County passed a resolution recognizing same-sex couples in committed relationships. Orange County was one of the first counties in Central Florida to do so. In 2015, a circuit court judge in Miami-Dade ruled that the county was required to extend benefits to same-sex domestic partners. The ruling was controversial and was later overruled by the appellate court.
In 2016, Broward County adopted a similar resolution, allowing same-sex couples living in a domestic partnership to choose whether to participate in the county’s health insurance program . In 2017, the south Florida counties of Miami-Dade, Monroe, and Osceola followed Broward County’s lead and extended similar benefits to same-sex couples in domestic partnerships.
These developments have been significant and reflect the long push for recognition and the need for legal rights among same-sex couples. Up until the legalization of same-sex marriage nationwide in 2015, same-sex partners had very limited rights compared to their heterosexual counterparts.
Although same-sex couples now have the fundamental right to marry, public opinion remains deeply divided on the issue of same-sex domestic partnerships. Political factors also play a significant role in the recognition of same-sex domestic partnerships.