Just because you’ve found your soulmate doesn’t mean you have to plan a walk down the aisle together. In fact, plenty of couples opt to share a life together without getting married. That said, if you hope to also share in the legal and financial benefits of cohabitation, it might be advantageous to upgrade your status from life partners to a domestic partnership. Ahead, licensed family attorney Ariel Sosna fills us in on everything to know about the term, including the key benefits it provides and how it does—and does not—differ from marriage.
Meet the Expert
Attorney Ariel Sosna is a certified specialist in family law and a founding partner of Van Voorhis & Sosna LLP. Based in San Francisco, her firm specializes in divorces, registered domestic partnerships, prenuptial agreements, and cohabitation agreements. She has been practicing law for 15 years.
What Is a Domestic Partnership?
Also referred to as a civil union, civil partnership, or reciprocal beneficiaries in some states, a domestic partnership is a romantic relationship between two people who share a household and a common life, but are not married.
The Origins of Domestic Partnership
While the legal and social constructs of marriage can be traced back to the dawn of human civilization, domestic partnerships are a more recent development. Prior to the 2015 Supreme Court decision that legalized gay marriage, same-sex couples across the United States were fighting to secure the same benefits and privileges afforded to married heterosexual couples. Since same-sex couples could not legally become spouses, alternative terms and legal rulings were needed to affirm and protect their relationship in the eyes of the law. The term “domestic partnership” was coined in the 1980s by California gay rights activist Tom Brougham, and the relationship class became officially recognized state-wide in 1999. That same year, Vermont became the first state to recognize civil unions, extending the rights of married couples to same-sex couples in Baker v. Vermont.
Now that same-sex marriage is legal, domestic partnerships and civil unions are less common, but they do still happen and can be an option for both same-sex couples and heterosexual couples depending on the state. California, D.C., Maine, Nevada, Oregon, Washington, and Wisconsin recognize domestic partnerships, while civil unions are granted in Colorado, Illinois, Vermont, New Jersey, and Hawaii.
How to Commemorate a Domestic Partnership
In California, domestic partners legally declare their relationship status by registering with the state, just as two people filing for a marriage license must similarly register. The same is true in other states. As marriage licenses and certificates are often commemorated with weddings big and small, so too can domestic partnerships be commemorated with celebrations. Whether that’s a quick courthouse ceremony or a dreamy destination affair is entirely up to you!
Similarities Between Domestic Partnership and Marriage
Per Sosna, most marriage, cohabitation, and domestic partnership rights are granted at the state and even county levels. As such, the privileges granted to domestic partners will vary depending on where a couple declares their partnership and where they live. That said, states that recognize domestic partnerships typically grant partners many or all of the same rights and privileges granted to legally married couples at the state level. This can include:
- Access to health, vision, and dental insurance
- Housing rights
- Hospital and jail visitation rights
- Parental and adoption leave
- Parental rights
- Emergency decision making
- Access to accident and life insurance coverage
- Property inheritance
- Alimony and just division of assets in the event of a relationship dissolution
Many states that extend the same privileges of marriage to domestic partnerships also expect the same responsibilities. In “community property” states such as California, for example, anything earned during a marriage can be split 50-50 in the event of a divorce. The same standards may be upheld in the dissolution of a domestic partnership.
Differences Between Domestic Partnership and Marriage
Domestic partnerships are not recognized at a federal level, which means that the legal differences between a domestic partnership and a marriage often only exist at the federal level. According to Sosna, this typically plays out in three arenas:
Social Security Benefits. In the event of a married person’s death, their surviving spouse is granted the deceased spouse’s derivatives from their Social Security benefits. That is not always the case with a domestic partnership.
Taxes. At the federal level, domestic partners are not able to file taxes jointly. While this can cause headaches and complications if you’ve filed jointly at the state level, it also may have the unintended benefit of helping you avoid a concept called the “marriage tax penalty” at the federal level.
“The marriage penalty is not a real penalty,” Sosna explains. “It’s the idea that our tax system has pieces that are a little old-fashioned, and one of those pieces is that there is a benefit to being a single wage-earning household. You will get better tax rates if you have one person supporting others. When you have two working adults that hit a certain level of income that two professionals can pretty easily hit, you end up getting taxed more heavily than you would, had you not been married.” This means that Partner A and Partner B will end up paying less in federal taxes when they file because they have to file separately.
Access to Retirement Accounts. “In the event of a divorce, there are certain assets that have federal laws surrounding them that would make the division of those assets [in a domestic partnership] difficult,” Sosna says. “Specifically: retirement accounts and 401(k)s.” At the federal level, married couples going through a divorce are able to transfer these funds without hold-ups or tax penalties. But because domestic partners are essentially strangers in the eyes of federal law, partners will have to find other avenues of accessing the funds.
Domestic Partnership vs. Common-Law Marriage
As with domestic partnerships, the definition of what constitutes a common-law marriage varies from state to state. The key difference between the two concepts, though, is intentionality. “Common-law marriage is more retroactive,” says Sosna. “We’re looking backward and saying, Look at this relationship. Is this like a marriage or not? With domestic partners, you’re not doing that. You’re saying: Effective going forward, we’re going to be partners—just like a marriage.”