Domestic Partnerships & Civil Unions | Vermont
Can same-sex couples marry in Vermont?
Yes. On April 7, 2009, Vermont became the first state to obtain marriage rights for same-sex couples through a legislative process rather than a court case. The bill, S.115 An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage (the “Marriage Act”) (See An Act Relating to Civil Marriage at: http://www.leg.state.vt.us/docs/2010/bills/Passed/S-115.pdf), was passed by the legislature on April 3, 2009; vetoed by the Governor on April 6, 2009; and the veto was overridden by the Senate (23-5) and the House (100-49) on April 7, 2009. The Marriage Act took effect on September 1, 2009.
This was the result of nearly 15 years of work by Freedom to Marry, under the leadership of Beth Robinson. GLAD was pleased to have been able to provide some assistance and support to the effort.
Six years later, in Obergefell v. Hodges (135 S.Ct. 2584 (2015)), the U.S. Supreme Court made marriage equality a reality nationwide when it held that the U.S. Constitution guarantees same-sex couples the right to marry. GLAD’s own Mary Bonauto represented the plaintiffs during oral arguments. Post-Obergefell, all 50 states are required to issue marriage licenses to same-sex couples, and all states must respect the marriages of same-sex couples performed in other jurisdictions.
Can same-sex couples obtain any other legal recognition of their relationships in Vermont?
Until September 1, 2009, same-sex couples were able to enter into a civil union in Vermont. However, effective September 1, 2009, Vermont no longer issues civil union licenses, but it will continue to recognize civil unions from Vermont and other states and provide those couples with all of the protections and responsibilities of marriage under Vermont state law.
When the legislature enacted the civil unions law, it also established “reciprocal beneficiary” relationships. These allow people who are at least 18 years old, are not parties to a marriage, civil union or other reciprocal beneficiary relationship, and are related by blood or adoption, to receive the protections and responsibilities granted to spouses in the areas relating to medical decision-making, end-of-life decisions, and abuse prevention (15 V.S.A. §§ 1301, 1303). The reciprocal beneficiary law was repealed effective May 28, 2014, based on the fact that, over 14 years, no reciprocal beneficiary relationship had ever been established in Vermont.
Without joining in marriage or a civil union, what steps can a couple take to safeguard their legal relationship in Vermont?
There are far more modest steps available to people who seek certain limited legal protections and do not desire a marriage or civil union. These include:
- Relationship Agreement or Contract: Cohabitation agreements regarding property and finances provide a way for couples to sort out their affairs in writing before a separation. This kind of document serves a similar function to a pre-nuptial agreement. As long as the contract is not about sexual services and complies with the requisites for a valid contract, it has a good chance of being upheld as valid. Bear in mind that, as in any state, specific provisions concerning children may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children. (See discussion below concerning parenting agreements)
- Power of Attorney: Any competent person may appoint another person as his or her “attorney-in-fact” for financial matters in the event the one becomes incapacitated or disabled (14 V.S.A. §§ 3501-3516).This power of attorney can be extended to the time when the person is incapacitated if the power of attorney says, “This power of attorney shall not be affected by the subsequent disability or incapacity of the principal” (14 V.S.A. § 3508(a)). If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. A power of attorney does not include authority to make health care decisions (14 V.S.A. § 3504(b)(1)).A person may also indicate his or her preference regarding the appointment of a guardian — a longer-term appointment that applies to all areas of a mentally incapacitated person’s personal care and financial affairs (court considers preference of incapacitated person in appointing guardian) (14 V.S.A. § 3072(b)(consideration of ward’s preference in appointing guardian)). The document indicating this preference should be executed with all of the formalities of a will and should be updated to keep track of all aspects of a person’s personal and financial situation.
- Advance Directives for Health Care and Disposition of Remains: Under Vermont law, an individual may appoint an agent to make decisions for him or her upon incompetence, incapacity or death (14 V.S.A. §§ 9700-9720) and provide the agent with an advance directive that, for example, can (18 V.S.A. § 9702):
- direct the type of health care desired or not desired;
- direct which life sustaining treatments are desired or not desired;
- identify persons with whom the agent should not consult or share information;
- authorize release of health information to other persons in addition to the agent;
- nominate persons to serve (or not serve) as the individual’s guardian should that be needed;
- direct the disposition of the person’s remains and the funeral arrangements.
- NOTE: Without an advance directive, medical providers and funeral directors look to a spouse or next-of-kin to make decisions. The advance directive can be revoked at any time by creating a new advance directive or by a clear expression of revocation (18 V.S.A. § 9704). People often give a copy of their advance directive to their doctors and sometimes to family members.
- Will: If a person is neither married, nor joined in a civil union, without a will, his or her property passes to: (1) his or her children or (2) his or her family (14 V.S.A. § 314). If the person wishes to provide for others, such as his or her partner, a will is essential. Even if a person has few possessions, he or she can name in the will who will administer his or her estate. If a person has children, he or she can nominate the future guardian of the child in a will.
Does a person need an attorney to get these documents?
GLAD recommends working with an attorney on these documents. Although some forms are available, the form may not be suited to your individual needs and wishes. Moreover, an attorney may be able to help you achieve 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 drafting an advanced directive for health care with specific instructions about types of treatments to which you do and don’t consent, and the exact scope of the agent’s authority.
If an unmarried couple separates, what is the legal status of a relationship/partnership agreement/contract?
Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one. Absent an agreement, couples can get involved in costly and protracted litigation about property and financial matters, with no divorce system to help them sort through it. It is likely that Vermont courts will, under some circumstances, recognize contract theories and equitable principles to address the property and financial matters of a separating same-sex couple even without a written agreement. However, written agreements provide for greater security.
If a person has changed his or her mind about who should be his or her attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planner, 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 the person’s present wishes.
What is domestic partnership?
Although it is a term used in many contexts, it most often means a status that recognizes an unmarried couple and their children as a family for certain limited purposes. In the workplace context, domestic partnership plans allow an employee to obtain certain fringe benefits for his or her partner that were previously limited to married spouses. Some states, cities and towns have also enacted domestic partner laws. In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.” Some people call cohabitation agreements “domestic partner agreements.” See GLAD’s publication, Domestic Partnership Benefits, for further information.
Does Vermont provide domestic partner benefits to state employees?
Yes. The State’s Personnel Policies and Procedures extend domestic partnership benefits to state employees. The benefits include medical benefits, bereavement and visitation rights. State employees interested in receiving health and dental insurance for their partners should contact the Department of Human Resources at (802) 828-3491 for an application, which can also be found on the state website at http://humanresources.vermont.gov/sites/humanresources/files/documents/Health_Domestic%20Partner%20Affidavit.pdf.
To qualify as a domestic partner, a couple must (1) be each other’s sole domestic partner in an “exclusive and enduring domestic relationship”; (2) share a residence for at least six months prior to applying; (3) be 18 years of age or older; (4) not be married to anyone; (5) not be related by blood such they could not marry; (6) be competent to enter a contract; and (7) have agreed to be responsible for each other’s welfare.
Can cities and towns in Vermont provide domestic partner health insurance benefits to their own employees?
Yes. Some of the cities that offer medical benefits for domestic partners of municipal employees include Burlington and Middlebury.
What kinds of domestic partner benefits may private employers provide?
Private employers can provide to domestic partners any benefits they wish—whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities.
However, even when employers provide these benefits, federal laws sometimes treat domestic partner (and civil union) benefits differently from spousal benefits, often with financial consequences. For example, employees must pay federal income tax on a domestic partner’s or civil union spouse’s health insurance benefits, but marital spousal benefits are exempt (See Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996)). Similarly, while spousal consent is required if a married employee decides to name a third party as a pension beneficiary or survivor benefits recipient, an employee with a domestic partner or a civil union spouse can change these designations freely.
What standards should same-sex couples with children who are breaking up maintain?
Same-sex couples with children who are breaking up should:
- Support the rights of LGBTQ+ parents;
- Honor existing relationships regardless of legal labels;
- Honor the children’s existing parental relationships after the breakup;
- Maintain continuity for the children;
- Seek a voluntary resolution;
- Remember that breaking up is hard to do;
- Investigate allegations of abuse;
- Not allow the absence of agreements or legal relationships to determine outcomes;
- Treat litigation as a last resort; and
- Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.
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