Yes! On November 6, 2012, Maine became the first state to obtain marriage rights for same-sex couples through an initiative process rather than a court case or vote by a legislature. Maine Question 1, An Act to Allow Marriage Licenses For Same-Sex Couples and Protect Religious Freedom,⁵⁰ was approved by the voters of Maine 53 to 47 percent.

Three 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.

Domestic Partnership is a term used in many contexts. In Maine, there is a state sanctioned domestic partner registry. In addition, some Maine employers offer “domestic partnership” benefits of their own to unmarried couples.

In 2004, the Maine legislature approved and former Governor John Baldacci signed a domestic partnership law titled “An Act to Promote the Financial Security of Maine’s Families and Children.” This law creates a domestic partnership registry in Maine and affords certain rights to registered domestic partners in the event of a partner’s death or incapacity. It defines “domestic partners” as “2 unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare.” The specific requirements for registration are set out below.

1. Inheritance Rights: In the absence of a will, registered domestic partners in Maine are given the same inheritance rights as a legally recognized spouse (although unequal tax burdens remain).
2. Legal Priority: The law provides that a domestic partner:
   • will be treated like a spouse when seeking to be a guardian of his or her partner in the event of that partner’s incapacity;
   • will have the same priority as legal spouses in seeking a protective order concerning the partner’s estate or the welfare of the partner;
   • is entitled to notice of hearings concerning the appointment of guardians in the event of the partner’s incapacity; and
   • is entitled to notice of the issuance of protective orders in the event of death.
3. Survivorship Rights: In the event of one partner’s death, the law makes the surviving domestic partner the first of the next of kin when determining who has the right to make funeral and burial arrangements. (As with surviving spouses, if a surviving domestic partner is estranged from the partner at the time of death, the domestic partner may not have custody and control of the deceased’s remains.)

Note: It is important to remember that in these matters, a written will and advance directive will supersede this law. Thus, if your partner has a written will or directive giving someone else any of these rights, that person will be given priority over you in asserting those rights, regardless of your registration as Domestic Partners.

Couples may become registered domestic partners in the State of Maine if they are “one of two unmarried adults who are domiciled under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare,” (18-A Me. Rev. Stat. sec. 1-201 (10-A)) and they meet the following specific requirements:

• each partner is a mentally competent adult and not closely related (e.g. close relatives);
• the domestic partners have been living together in the state for at least 12 months before the filing;
• neither domestic partner is married or in a registered domestic partnership with another person; AND
• each domestic partner is the sole domestic partner of the other and expects to remain so (22 Me. Rev. Stat. sec. 2710(2)).

All Domestic Partner registrations are filed with the Office of Health Data and Program Management. To become registered domestic partners, the partners must jointly file a notarized form and pay the required filing fee of $35. Forms can be accessed at municipal offices, probate courts, Department of Health and Human Services offices and on the Office of Vital Records website.

Once completed and notarized, the form needs to be returned to the Office of Vital Records in Augusta with the required filing fee, either by mail or in person. Once received, the registry will file the declaration and return two certified copies of it to the domestic partners at the address provided as their common residence (22 Me. Rev. Stat. sec. 2710(3)).

A registered domestic partnership is ended by:

• the marriage of either registered partner;
• the filing of a notice of termination indicating each partner’s consent to the termination, which must be signed by both registered domestic partners before a notary; OR
• the filing of a notice under oath from either domestic partner that the other registered partner was directly given a notice of intent to terminate the partnership. If giving notice by hand is not feasible, then a different way of giving notice may be accomplished as provided by the Maine Rules of Civil Procedure for commencement of a civil action. Termination under this method is not effective until 60 days after the notice has been given (22 Me. Rev. Stat. sec. 3710(4)).

Note: Failure to give notice could result in having to pay any loss suffered by the opposing partner due to lack of notice.

• State law requires all insurers providing health coverage in the State of Maine to offer their policyholders the option of additional benefits for their “domestic partner” (24 Me. Rev. Stat. sec. 2319-A; 24-A Me. Rev. Stat. secs 2832-A & 4249 (2)).
• Maine’s Family Medical Leave Law was amended in June 2007 (26 Me. Rev. Stat. sec. 843 (4)) to include the employee’s “domestic partner” and child of the employee’s “domestic partner.” The law allows up to 10 weeks unpaid leave to care for a sick partner or the child of either the employee or partner. Also, family medical leave provides leave if an employee is a “domestic partner” of a member of the armed services (“An Act to Assist Maine Military Families” LD 256, 2007 Leg., 123rd Leg. (Me. 2007). See also, 26 Me. Rev. Stat. sec 843 (4)).
• In 2007, the Maine legislature passed an “Act Regarding Fairness for Families Regarding Worker’s Compensation Coverage” which added “domestic partners” of employers to the list of individuals who may waive worker’s compensation coverage in certain circumstances (39-A Me. Rev. Stat. sec. 102 (sub-§11) (A) & (B-1)).
• Also in 2007, the law concerning absentee ballot procedures was amended to include “domestic partners” under the definition of “immediate family” for the purpose of requesting an absentee ballot (31-A Me. Rev. Stat. sec. 1 (20)).

To access the above benefits, registration in the statewide domestic partnership registry is not required and the definition of “domestic partner” for these benefits is slightly different. Generally, to access these benefits, you may be required to sign an affidavit before a notary stating that:

1. each partner is a mentally competent adult (not required for requesting an absentee ballot);
2. the domestic partners have been legally living together for at least 12 months;
3. neither domestic partner is legally married to or legally separated from another person;
4. each domestic partner is the sole domestic partner of the other and expects to remain so;
5. the domestic partners are jointly responsible for each other’s common welfare as evidenced by joint living arrangements, joint financial arrangements or joint ownership of real or personal property (26 Me. Rev. Stat sec. 843 (7); 21-A Me. Rev. Stat. sec. 1 (13-A); 24 Me. Rev. Stat. sec. 2319-A (1)).

Same-sex couples can also execute a variety of estate planning documents and designate a non-legally related adult to have certain rights and responsibilities (see “Legal Protections for Same-Sex Couples” below).

Yes. State employees can receive health insurance for their domestic partners.

• The value of the state paid portion of the domestic partner health insurance coverage is income and taxable wages to the employee participant at both the federal and state level, unless the partner is also a tax dependent.
• Domestic partners of employees of the University of Maine System can receive health insurance, tuition waiver, access to university facilities, and all spousal benefits not restricted by federal law.

Yes. Many lawyers also believe this result is required by the non-discrimination law if the city or town provides benefits to heterosexual couples.

It is also possible that under Maine’s mini-COBRA law for companies with fewer than 20 employees (sexual orientation is not covered by the Federal COBRA law), employees with domestic partners will have the same right as heterosexual couples to maintain health insurance coverage after employment ends (24-A Me. Rev. Stat. secs. 2849-B & C).

Some employers provided these benefits before the non-discrimination law was amended to include sexual orientation. For example, the City of Portland extends domestic partner benefits, including health insurance, to qualified domestic partners of City and School Department employees. In order to qualify for such benefits, an employee must have his or her partnership registered by the City and must provide the City or School Department with two or more forms of proof exhibiting that they are jointly responsible for each other’s common welfare and share financial obligations. Examples of such proof include the joint mortgage or ownership of property; the designation as a beneficiary in the employee’s will, retirement contract or life insurance; a notarized partnership agreement or relationship contract; and any two of the following: a joint checking account, a joint credit account, a joint lease, or the joint ownership of a motor vehicle (Portland, Me. Code, sec. 13.6-21 (2001). Available at: http://ci.portland.me.us/citycode/chapter013_6.pdf).

Note that municipal domestic partner plans have withstood a court challenge. In 2004, GLAD, together with the Portland City Attorney and cooperating counsel, successfully represented the City of Portland in a challenge to the domestic partnership registry system and benefits offered there. The claim was that the domestic partnership law was superceded by the state anti-gay, anti-marriage law. See Pulsifer v. City of Portland, and GLAD’s press release Maine Trial Court Upholds Portland’s Domestic Partnership Ordinance.

In addition, the cities of Bar Harbor and Camden and the County of Cumberland provide domestic partner health insurance benefits to their employees. Portland also maintains a domestic partner registry which allows people to register their relationships and receive family memberships and rights in city-run facilities.

Private employers can provide to domestic partners many benefits, such as health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities. While it’s hard to identify all employers providing benefits in Maine, they include L.L. Bean, Care Development of Maine, Fairchild Semiconductor, Idexx Laboratories, Inc., Energy East Corp., The Gale Group, Hannaford, Maine Coast Memorial Hospital, Maine Medical Center, TD Banknorth Group, the University of Maine System, the University of New England, and Bowdoin, Bates, and Colby Colleges (see The Human Rights Campaign’s Employer Database, available at http://www.hrc.org/issues/workplace/equal_opportunity/search_employers.asp).

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 his or her partner’s health insurance benefits (unless the partner is a tax dependent), but a spouse does not (see e.g., Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996)). 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 whereas previous law required the beneficiary to take and pay income taxes on the 401(k) as a lump sum (see Human Rights Campaign, Pension Plans, available at http://www.hrc.org/issues/4821.htm).

However, other discriminatory aspects of federal law remain regarding pensions. A domestic partner has no right to sign off if his or her 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 his or her partner’s designation of another person for survivor benefits.

Whether the couple is married or in a Maine registered domestic partnership or does not have an legal relationship, they can protect their relationship through the following:

1. Relationship Agreement or Contract: Agreements regarding property and finances should be respected and honored according to ordinary rules of contract law. The Maine Law Court has not yet specifically ruled on the subject, but that result comports with Maine contract law and the law of other states that have found such agreements to be enforceable.
2. Durable Power of Attorney: Any competent person may appoint another person as their “attorney-in-fact” for financial and/or other matters in the event they become incapacitated or disabled. If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual.

A person may also nominate their guardian or conservator in the same document. This is a longer-term appointment that takes priority over the attorney-in-fact. This choice can only be rejected by a court for “good cause or disqualification.” The mere fact that a family member is not named as the guardian or conservator does not constitute good cause.

1. Durable Power of Attorney for Health Care: Medical care providers often look to next-of-kin to make health care decisions for an incapacitated individual. If an unmarried person wants someone other than their legal family to make these decisions, then a durable power of attorney for health care is a critical source of protection. In Maine, a person can appoint a health care agent to make decisions for him or her immediately, or upon incompetence. It must be signed by two witnesses (not including the person appointed as attorney-in-fact). It can only be revoked while they are still competent. Otherwise, it must be revoked in court.

While a written Durable Power of Attorney provides the most certainty that a person will be cared for by the person they want to make those decisions, Maine law also has a procedure by which “an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse” can make health care decisions for an incapacitated person.

This provision might be cumbersome to enforce but provides a way for a partner to be involved in their incapacitated partner’s health care decisions absent documentation.

Within this Durable Power of Attorney for Health Care, or in a separate document called an “Advance Directive,” a person may address end of life issues like artificial nutrition and other life-sustaining treatments. The Attorney General’s Office has a model advance directive posted on their website, Advance Health-Care Directive Form | Maine.gov .

While a written Advance Directive provides the most certainty that a person’s wishes will be followed, Maine law also allows a procedure for a person to make end of life decisions for another if they can prove they are family members. Spouses are given first priority, followed by “an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse. ”This provision might be cumbersome to enforce but provides a way for a partner to be involved in their partner’s end of life decision.

1. Will: Without a will and without having registered as a domestic partner, 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 the 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 nominate a guardian of the child which will become effective upon death. Such nominations are highly regarded by courts although they are not binding on the court.
2. Funeral Planning Documents: Upon death, a person’s next-of-kin is given control of the deceased’s body. This means that a person’s own partner has no automatic right to remove the body or make plans for a final resting place.

If a person has either (1) registered as a domestic partner under the state law; and/or (2) designated in writing that another person is to have custody and control of their remains (such as their partner or a friend), then that person will have control over the body as well as funeral arrangements and the selection of a final resting place.81 It is infinitely preferable to prepare funeral planning documents in advance than to leave instructions as part of a will since a will may not be found for days after death.

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 and may not conform to the specific requirements of Maine law, which would render them invalid and unenforceable.

Moreover, attorneys may be able to 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. In addition, many people find attorney assistance critical because same-sex couples are afforded different tax treatment from married heterosexual couples. Failure to consider tax consequences can lead to enormous difficulties upon death or separation.

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.

Absent an agreement, generally applicable rules about jointly owned property and accounts come into play. Some couples can get involved in costly and protracted litigation about property and financial matters but without the predictable rules of the divorce system to help them sort through it. It is notable that the Law Court has respectfully handled the dissolution of a same-sex domestic partnership under equitable principles and the law of joint tenancy.

PLEASE NOTE: If a person has changed their mind about who should be their 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.

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; and
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 | GLAD.