A Definition of Domestic Partnership
A domestic partnership is generally defined as a personal relationship between two individuals who have chosen to share their lives in an intimate and committed relationship of mutual caring. The concept of domestic partners has been used for many years in various contexts, including insurance coverage for domestic partners, long-term care insurance, and healthcare decision-making.
In the context of domestic partnership laws, these laws use a specific legal definition of domestic partner. While the legal definition varies from jurisdiction to jurisdiction, a domestic partner typically means a person who is of the same sex and: (1) with whom the covered employee or retiree has shared an intimate and committed relationship and (2) has a level of financial interdependence and mutual support as a couple.
While not specifically the same concept , a civil union is a relationship similar to marriage which provides some state-level legal protections. Domestic domestic partners have certain privileges that civil union partners do not have. For example, domestic partners can generally access their partner’s health insurance benefits through their employer, have rights of inheritance and child custody, file taxes jointly, simplify their estate planning, and obtain some of the same financial supports that married couples have.
Florida law does not currently provide for domestic partnerships. Florida’s Constitution defines marriage as the legal union of one man and one woman.
The Legal Requirements for Domestic Partnerships in the State of Florida
The basic legal requirements for domestic partnerships in Florida include the following: The domestic partnership application in Florida must be signed by both parties. The notarized signature of a witness also is required. Domestic partners must sign a document attesting that they are eligible to form a domestic partnership. Criminal penalties or eviction may occur for violation of these requirements. In Florida, the eligibility standards for forming a domestic partnership include: Domestic partners must file a registration in the county in which at least one of them resides. The registration must be filed jointly with the appropriate county agency. The registration must include a registration fee, as well as any other fees required by the county. The counties with domestic partnership ordinances include Alachua, Bay, Broward, Charlotte, Citrus, Clay, Duval, Escambia, Hillsborough, Lee, Leon, Manatee, Miami-Dade, Orange, Osceola, Palm Beach, Pinellas, Polk, Santa Rosa and Seminole. Domestic partnerships allow the parties to receive or provide medical care and benefits. They can make health care decisions on behalf of the other person in the event he or she is unable to do so. A domestic partnership gives the parties inheritance rights in the event of the death of one of them. It also provides them with certain rights to participate in the dissolution process, including equitable distribution and alimony decisions.
Rights and Benefits of Florida Domestic Partners
As of 2010, Florida law includes very few provisions that govern domestic partners, primarily in the area of healthcare and healthcare decision-making. However, in many areas of law, the absence of specific provisions governing domestic partners does not mean that they are without rights – it simply means that the more general rules of law apply.
For example, under Florida law, married couples are presumed to be the legal next of kin for healthcare decision-making purposes. In 2006, however, in Medical Decision Making in Florida: A Primer for Physicians, the Florida Agency for Health Care Administration stated that:
[W]here there is no statutory recognition of domestic partner status in Florida, a healthcare decision may be made by a partner, except where the choices of one’s medical surrogate are restricted by law (e.g., refusing transfusions or sterilization).
The evidence that domestic partners have, in practice, made many healthcare decisions is provided both by the longstanding policies of the University of Miami and the Broward County Sheriff’s Office regarding health care decision-making, and by the recent enactment of Chapter 774, Florida Statutes.
Chapter 774, Florida Statutes, the Medical Expenses Recovery Act, was passed in 2007 and amended in 2008 to add language specifically defining the "family" members who can recover medical expenses on behalf of another person to now include domestic partners as well as both step-parents and step-children of that person. The amended statute provides:
774.103 Persons legally entitled to recover medical expenses from persons responsible for injuries or death; definition of "family" member.—
(1) Subject to ss. 401.445, 415.107, 415.605, and 415.803, a person is legally entitled to recover medical expenses for that person’s injury or death from a person or entity legally responsible for the injury or death if the person seeking to recover is a family member of the injured or deceased person. For purposes of this section, the term "family" member means a spouse, son, daughter, father, mother, brother, sister, stepparent, stepchild, domestic partner, grandparent, or grandchild of the injured or deceased person.
Domestic partners can also gain certain rights by filing documents with the Public Records office in their local county courthouse, such as a Declaration of Domestic Partnership in Miami-Dade, for example. Fla. Stat. § 2-117.1-.9. My firm is in the process of creating domestic partnership registration documents for other counties in Florida.
Fla. Stat. § 2-117.9 gives domestic partners whose relationship has ended the right to request the court to give the domestic partner "reasonable visitation with any minor child of a domestic partner at reasonable times and locations." This should not be confused with a child custody determination, however. The court is not required to grant visits with a child if the visitation would not be in the best interests of the child.
Currently, Florida does not provide domestic partners with substantial estate planning advantages, such as the rights that married spouses have to joint property ownership with rights of survivorship, probate exemptions, and so forth. Domestic partnerships can, however, allow domestic partners to have an increased opportunity to save on taxes because they can make "transfers without consideration" to each other, which can lessen the impact of federal estate taxes.
Domestics partners cannot file joint state income tax returns, but they can the federal tax return, and the federal government is considering eliminating questions on federal forms that require filers to identify themselves as married, single, etc., which may allow same-sex couples to avoid potential discrimination.
While Florida law has a long way to go before domestic partnership rights are equal to those of a married couple, there are many advantages that domestic partners should know about.
How Domestic Partnerships Can End
In Florida, the process for terminating a domestic partnership is very similar to the process for dissolving a marriage, although where the marriage dissolution process is statutorily codified, the same cannot be said for domestic partnerships. The Florida legislature has not yet adopted anything akin to the Uniform Premarital Agreement Act.
The parties may terminate their domestic partnership by executing and delivering a statement of termination signed by both partners , or by initiating a legal action for dissolution of domestic partnership. The rights and liabilities of each partner upon termination of a domestic partnership are governed by the terms of written agreement between partners, if they have one. If there are no such terms of agreement, the same section of statute governing the courts in dissolution of marriages (i.e., attorney’s fees and distribution of assets and liabilities – under 61.16 Florida Statutes), is applicable to domestic partnerships.
New Changes and Florida Legal Trends
The comprehensive study of domestic partnerships that provides the background for this Summary is found in a 2009 Report, Florida Domestic Partnership Study and Needs Assessment. That study is as comprehensive and thorough a legal and social examination of domestic partnership law available to any state legislature. It includes an analysis of the economy of families, an overview of change in family dynamics within Florida over a 10 year period, a survey of domestic partnership laws within other states, three generations of family lawyers in Florida providing a critical examination of domestic partnership rights and obligations, an analysis of the potential economic impact of domestic partnerships and a proposal for legislation. It is a "must read" for anyone interested in the issues involving domestic partnership in Florida.
A short summary of the five most significant changes in the last few years include:
- The 15th Judicial Circuit Court of Florida, located in Palm Beach County, adopted a "Domestic Partnership Ordinance" on February 21, 2011. This ordinance permits domestic partners, with specific exceptions, to register as a "civil union." Specifically the ordinance provides that the Circuit Court will file the "Certificate of Domestic Partnership" entered by a Deputy Circuit Court Judge. Once filed, the Certificate creates a "civil union" which gives the parties "the same right, protections and benefits and the same civil obligations" given to spouses. The Ordinance does not permit registered domestic partners to file a petition for dissolution of the "Domestic Partnership" in the courts of the 15th Judicial Circuit. No out of state partners will be able to file for dissolution in a Florida court unless they very specifically prove "jurisdiction" under the "long arm" statute.
- The Pinellas County Commission adopted a Local Ordinance permitting same sex domestic partners to be entitled to the same rights and protections as married couples. Using language similar to the 15th Judicial Circuit Ordinance, the Pinellas County Local Ordinance provides that when filed, a "Certificate of Domestic Partnership" will be entered by the Clerk of Circuit Court. And as in Palm Beach County, the "Certificate of Domestic Partnership" provides the parties with the same benefits, rights and privileges of marriage, except for the right to adopt, which requires a court order.
- On May 18, 2011, the City of Orlando enacted a Domestic Partnership Trust Fund. The fund is specifically intended to provide insurance coverage to same-sex and "unmarried domestic partners" of City employees. The Ordinance permits domestic partners to extend health care coverage to partners who are considered "unrelated dependents" under certain parameters set forth in the Ordinance. The ordinance specifically excludes city employees from coverage if they are married, divorced, "with a legal spouse," part of another domestic partnership or civil union or if their partner is retired.
- Effective October 1, 2012, the Volusia County Commission expanded Health Benefits to domestic partners in the health insurance policies offered to county employees.
- Effective September 1, 2012, Miami-Dade County added Domestic Partners to its health insurance plan as an extension of benefits to same-sex partners for those civil servants eligible for benefits.
Domestic Partnerships vs. Marriage in the State of Florida
A domestic partnership is a legally recognized union of two people that is not deemed a marriage. While similarly instituting familial rights and responsibilities, domestic partnership agreements are often more limited in scope than marriage. In addition to the absence of federal recognition, the most significant differences between domestic partnership and marriage in Florida are:
Cohabitation Requirements: Whereas marriage requires that the parties have the intent of being married, domestic partners in Florida are required to reside together. In the same way that our courts consider marital cohabitation when determining issues of alimony and equitable distribution of property, domestic partners are required to live together to create enforceable legal obligations.
Length of Relationship: In Florida, domestic partnership is limited to two years. During this period, a domestic partnership can only be dissolved through the filing of a dissolution of domestic partnership proceeding.
Termination of Relationship: The termination of a domestic partnership is different from a divorce . In order to dissolve a domestic partnership, parties must file a Petition to Dissolve Domestic Partnership in the circuit court of their county of residence. Although the petition is similar in form to that of a Petition for Dissolution of Marriage, the document is not interchangeable, and the standard of review that the court must applies is different.
Property Division: While equitable distribution is the standard rule for asset and debt division during a divorce, it can be "contracted around" and superseded by a marital settlement agreement. As part of the settlement agreement in a divorce, parties can voluntarily agree to distribute their marital assets in any manner they choose. However, a domestic partnership is not a marriage. Therefore, the court does not automatically have jurisdiction to divide a domestic partnership’s property in the same way as a divorce. A court may divide the property if everyone involved agrees, if the court has jurisdiction over the property, or if the contract may be enforced by equity.