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Affected by the New “Everything but Marriage” Domestic Partnership Law?
Mary E. Dickinson, CPA
Principal, Tax Services
Principal, Accounting and Assurance Services
June 1, 2009
Over the last two years, more than 10,000 Washingtonians―representing 5,000 unmarried same-sex and opposite-sex couples―have registered as domestic partners under state law.
Following on 2007 legislation that established the state's domestic partnership registry, and 2008 legislation that extended domestic partnership rights and responsibilities, Governor Gregoire signed everything but marriage domestic partnership legislation in May of 2009. The new legislation extends to state-registered domestic partners all of the privileges, immunities, rights, benefits, and responsibilities that are granted to married persons under Washington State law.
If you've registered―or are considering registering―as a domestic partnership in Washington, it is important to recognize the potential legal, financial, and estate planning ramifications of the domestic partnership law. If you're an employer or a business owner, the new domestic partnership law may also affect you. And even if you're not directly impacted, you may be asked to vote on repealing the 2009 legislation this November.
History of Domestic Partnership Laws in Washington*
Washington established a statewide domestic partnership registry for qualifying same-sex and opposite-sex couples in 2007. Registered domestic partners were granted a limited number of rights previously granted only to spouses, including health care facility visitation rights, beneficiary rights in wrongful death actions, rights regarding anatomical gifts and the disposition of remains after death, automatic termination of power of attorney upon termination of a domestic partnership; and inheritance rights when there is no will.
To qualify as registered domestic partners under Washington law, the persons in the couple must meet the following requirements:
 share a common residence
be at least 18 years of age
not be married to someone else, or in a domestic partnership with another person
be capable of consenting to the domestic partnership
not be closely related to each other in any other manner specified in the legislation
be of the same sex―or if they are of different sexes, at least one person must be at least 62 years of age
In 2008, the rights and responsibilities of registered domestic partners were significantly expanded to address community property rights, child support and parenting plan obligations, veterans' benefits, spousal testimonial privileges, taxes, guardianships, estate planning and probate and trust provisions, conflicts of interest for public officials, and the right to share rooms in nursing homes and long-term-care facilities, among others. The law also modified the termination process to more closely follow those procedures applicable to the dissolution of marriage.
The New Everything-But-Marriage Legislation
The new domestic partnership legislation extends to Washington State's registered domestic partners all of the rights and responsibilities of married couples―including the following:
business succession rights
workers' compensation and disability insurance coverage
unemployment and disability insurance benefits
use of sick leave to care for a domestic partner
wages and benefits when a domestic partner is injured
unpaid wages upon the death of a domestic partner
adoption and child custody rights and child support responsibilities
victims' rights, including notifications and benefits
legal process rights, including the ability to sign certain documents and rights to cause of action
insurance rights, including continuing coverage and conversion rights, as well as rights available under group policies and upon a domestic partner's death
These new rights and responsibilities are in addition to those already granted to domestic partners in 2007 and 2008. However, Washington's domestic partnership legislation does not supersede federal law, which has not recognized domestic partnerships. As a result, domestic partners cannot file joint federal income tax returns and do not qualify for other federal benefits that are afforded to married spouses.
Current Status and Effective Dates
Initial provisions of Washington's new law were to take effect in July of this year, however the implementation may be delayed or overturned as a result of a referendum filed by opponents of the law.
Opponents have until July 25 to gather more than 120,000 signatures in order to put the law before voters this November. If they do not gather the required number of signatures, the law goes into effect on July 26 as scheduled. If they are successful, the legislation is put on hold and the state's voters will have the option to repeal the law in November. Assuming voters then choose not to repeal the law, it becomes effective after the election is certified in November.
In recognition of the state's current budget crisis, if the legislation does become effective this year, certain provisions―generally, those with a fiscal impact―will not take effect until January of 2014.
Given the sweeping nature of the new legislation and the pending legal challenge to its implementation, it is not yet possible to provide detailed guidance regarding its impact―either for Washington's registered domestic partners or their employers.
However it is important to note that the referendum and potential vote in November have no impact on the rights and responsibilities conveyed to registered domestic partners by the state's 2007 and 2008 domestic partnership legislation. While the ultimate fate of the legislation is being determined, employers should continue to evaluate their policies with regard to possible discrimination under the state's domestic partnership law.
After the new legislation is implemented, look for another articlewith additional guidance for domestic partners and their employers.
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* My article Eligible for Washington State’s New Domestic Partnership Registration? describes Washington's 2007 domestic partnership law. My subsequent article, Affected by Washington's Newly Expanded Domestic Partnership Law? provides an overview of the state's 2008 domestic partnership legislation.
You may also find the article Part of an Unmarried Couple? How Marital Status Affects Financial and Estate Plans by Bader Martin principal David Stiefel to be of interest.
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