Before the United States Supreme Court’s ruling in Obergefell v. Hodges in 2015, some states allowed same-sex marriage, while others acknowledged a legal relationship between same-sex partners only through civil unions or domestic partnerships. While same-sex spouses now have many of the same rights and benefits as opposite-sex couples (e.g. the power to make emergency medical decisions, inheritance rights, employee benefits for spouses and tax benefits), those in domestic partnerships and civil unions do not have many of the same rights as same-sex couples that have chosen to marry.
In many states, domestic partnerships have been a means of providing rights to same-sex couples during a time when same-sex marriage was not legal. Most registered domestic partners have been same-sex couples who live together. Domestic partnerships provide some of the same benefits as marriages.
Couples that wanted to register in states that recognize domestic partnerships have had to declare their relationship was serious at a designated government office and also submit an application, pay a fee, and provide documentation showing that they met certain requirements, such as sharing a permanent residence and not being married to other people.
The benefits available to registered domestic partners have varied from state to state. Often domestic partners have been able to obtain coverage under a family health insurance policy, had a right to bereavement leave, obtained visitation of partners in hospitals and jails or gotten leave to care for a sick partner. In some cases, these types of partnerships allowed partners to receive healthcare benefits from certain employers who want to give health care benefits to same-sex couples in committed relationships. However, there has been no recognition of domestic unions for purposes of benefits such as federal taxes, Social Security or immigration. Moreover, partners in domestic partnerships may not be beneficiaries of pensions.
Sometimes employers and municipalities have offered domestic partner benefits even in states where these partnerships are not recognized. In that case, the partnership can be created privately. The benefits have varied between employers and municipalities, but have included rights such as inclusion of a domestic partner on one’s health insurance policy, medical leave, and being considered next of kin for purposes of important medical decisions.
Since the legalization of same-sex marriage, many corporations and businesses have decided to phase out domestic partnership benefits and replace them with spousal employment benefits. Some of these businesses expect couples to marry if they want to receive these spousal benefits. In states where same-sex marriage was legalized before Obergefell, many employers have already phased out domestic partnership benefits. This development presents problems for same-sex couples who do not wish to marry.
A civil union is a legal relationship that provides protection to a same-sex or opposite-sex couple at the state level. It is not a marriage, and it doesn’t provide federal benefits, protections or responsibilities to a couple. Civil unions are not recognized in all states, but were established as an alternative for same-sex couples to receive state protections and benefits before marriage was available.
The five states that permitted civil unions allowed same-sex couples to access various benefits available to married couples such as inheritance, hospital visitation and guardianship. For example, in Illinois the state allowed those in civil unions to avoid testifying against one another, workers’ compensation benefits for partners killed at work, the ability to own property jointly, the ability to recover for a partner’s wrongful death, and intestacy rights. Since same-sex marriage was recognized in Obergefell, however, civil unions are no longer performed, and earlier civil unions have been converted into marriages.