Domestic Partnerships & Civil Unions | Massachusetts

Although it is a term used in many contexts, “domestic partnership” most often means a status that recognizes an unmarried couple and their children as a family for certain limited purposes, most commonly employee benefits, like health insurance. Some employers still offer these benefits to unmarried couples, although many employers stopped offering these benefits once same-sex couples had the ability to marry.

Yes. The Massachusetts Supreme Judicial Court has ruled that Massachusetts courts must give the same respect to civil unions and registered domestic partnerships as marriages, with rights and obligations functionally identical to marriage.

Probably not. While several cities and towns have done so in the past, a court ruling in 1999 found that Boston did not have the power to expand the reach of the state insurance laws by including domestic partners in the group health system (Connors v. Boston, 430 Mass. 31 (1999)). Amherst has continued its domestic partner program by buying individual health insurance policies for the partners of Amherst employees who previously had group health coverage through the town. Several other cities and towns have also continued to provide coverage.

Private employers can provide many benefits to domestic partners, such as health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities.

Even when employers provide these benefits, though, federal and state laws require different tax treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay federal and state income tax on the value of their partner’s health insurance benefits (unless the partner is a tax dependent), but a spouse does not. Partners do not qualify as spouses under federally-controlled Flexible Spending Accounts unless the partner is also a tax dependent.

As for pensions, under the Federal Pension Protection Act of 2006, employers may amend their 401(k) plans so that non-spouse beneficiaries may retain the asset as a retirement asset. If a plan is so amended, beneficiaries may “roll over” the 401(k) into an IRA depending upon the employee’s death. In contrast, previous law required the beneficiary to take and pay income taxes on the 401(k) as a lump sum.

However, other discriminatory aspects of federal law remain regarding pensions. A domestic partner has no right to sign off if their partner decides to name someone else as the beneficiary of a pension, although a spouse would have that right. In addition, a domestic partner has no right comparable to that of a spouse to sign off on their partner’s designation of another person for survivor benefits.

Probably not. Although the non-discrimination law says that an employer can’t discriminate on the basis of sexual orientation in terms of compensation, and even though employee benefits are a form of compensation, the law contains an express exemption for employee benefits (Laws 1989, chap. 516, sec. 19). Thus, an employer may provide domestic partner benefits if it chooses to do so, but it probably cannot be forced to do so through the state non-discrimination law.

Yes. The Massachusetts Supreme Judicial Court has ruled that civil unions and registered domestic partnerships with rights and obligations functionally identical to marriage will be accorded the same respect as marriages by Massachusetts’ courts.

There are various legal documents that can protect a couple’s relationship, regardless of whether the couple has no formal legal relationship or is already in a marriage.

1. Relationship Agreement or Contract: A couple has the option of drafting a written cohabitation agreement, outlining their respective rights with regards to property, finances, and other aspects of their relationship. The Massachusetts Supreme Judicial Court has held that these agreements are generally enforceable and will be respected according to ordinary rules of contract law. Although such agreements may concern the custody and support of children, a court will not uphold any agreement it finds to contravene the child’s best interests. Finally, couples should note that if they eventually marry, a previous relationship agreement will likely no longer be valid, and any post-marital agreement will be enforceable only to the extent that it is fair and equitable to both parties.

2. Power of Attorney: A couple can choose to grant each other the durable power of attorney, allowing one partner to make financial decisions on the other’s behalf in the event of incapacity or disability. The requirements are minimal: any competent person may appoint another person as their “attorney-in-fact”. If no such appointment is made, a family member will be empowered to make decisions for the incapacitated individual.

If one partner is incapacitated or disabled, the other partner may petition the court to be appointed as their guardian in order to make decisions on their behalf. Unless good cause dictates otherwise, a court should grant guardianship to whoever has durable power of attorney over the incapacitated person.58 Thus, couples are encouraged to grant each other durable power of attorney if they believe guardianship will one day be necessary. It is important to note that an individual’s choice can only be rejected for good cause—a court should not substitute its own judgment just because a family member objects to the appointment.

3. Health Care Proxy: A couple can also choose to appoint each other as health care proxies, allowing them to make medical decisions on one another’s behalf in the event of an emergency. Absent a health care proxy appointment, medical care providers look to next-of-kin to make health care decisions for an incapacitated individual. Thus, if an unmarried couple wants to make decisions for one another, they need a health care proxy. Health care proxies can be revoked at any time, either by creating a new health care proxy or by a clear expression of revocation. People often give a copy of the health care proxy to their doctors, and sometimes to family members. You can find a sample Health Care Proxy form here: Massachusetts Medical Society: Health Care Proxy Information and Forms.

4. Will: Without a will, a deceased unmarried person’s property passes to: (1) their children; (2) their family; (3) if next-of-kin cannot be located, to the state. If a person wishes to provide for others, such as their partner, a will is essential. Even if a person has few possessions, they can name in the will who will administer their estate. If a person has children, they can also nominate the future guardian of the child in a will.

5. Funeral Planning Documents: Upon death, a person’s body is given to their next-of-kin. This can mean that a person’s own partner has no right to remove the body or make plans for a final resting place. But if a person leaves explicit written directions giving another person (such as their partner or a friend) control over the funeral and burial arrangements, any confusion can be avoided. Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters, as well as to family members.

6. Living Will: Within a health care proxy, language may be inserted stating what the individual wishes regarding termination of life support, preferences for types of medical care, or limits on the agent’s authority.

Temporary Agent or Guardianship: Parents, particularly those with life-threatening illnesses, may either appoint a temporary agent61 for a period not exceeding 60 days, or appoint a guardian whose appointment takes effect when the parent dies or is unable to care for the child. Within 30 days after the appointment of a guardian, the guardian must petition the Probate and Family Court for confirmation of the appointment. The parent has the right to revoke the powers of the temporary agent or guardian at any point.

GLAD recommends working with an attorney on these documents.

Although forms are available, the form may not be suited to your individual needs and wishes. Moreover, an attorney may be able to better help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or an appointment of a health care agent with very specific instructions. In addition, an attorney may help to navigate the legal uncertainties flowing from the areas of overlap between these documents. GLAD Answers can provide referrals to attorneys who are members of GLAD’s Lawyer Referral Service.

Upon separation, if the couple has a Relationship or Partnership Agreement/Contract, its terms will be invoked, and the couple’s assets will be divided as per the agreement. Without an agreement, unmarried couples may be forced to endure costly and protracted litigation over property and financial matters.

PLEASE NOTE: If you have changed your mind about who should be your “attorney-in-fact,” health care representative, beneficiary or executor under a will, funeral planner, conservator, or designee under a designation document, then those documents should be revoked—with notice to all persons who were given copies of those documents—and new documents should be prepared which reflect your present wishes.

Same-sex couples with children who are breaking up should:

1. Support the rights of LGBTQ+ parents
2. Honor existing relationships regardless of legal labels
3. Honor the children’s existing parental relationships after the break-up
4. Maintain continuity for the children
5. Seek a voluntary resolution
6. Remember that breaking up is hard to do
7. Investigate allegations of abuse
8. Not allow the absence of agreements or legal relationships to determine outcomes
9. Treat litigation as a last resort
10. Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result

For more detailed information about these standards see the publication Protecting Families: Standards for LGBTQ+ Families at: Protecting Families: Standards for LGBTQ+ Families.