What Every Registered Domestic Partner in Washington State Needs to Know

April 21, 2011

In February 2011, U.S. President Barack Obama made the ground-breaking announcement that his administration would no longer defend the Defense of Marriage Act (DOMA), which bans federal recognition of same-sex marriages. While the change in federal DOMA enforcement is a great stride forward in equal rights for the LGBT community, there are still alarming conflicts between federal law and Washington state law. If you are considering registering for a domestic partnership, are in a registered domestic partnership or if you advise people who are in a registered domestic partnerships, you need to be aware of the gaps and limitations between Washington state law and federal law.

Washington has been at the forefront of the LGBT civil rights movement for some time. Registered Domestic Partnerships were first recognized in Washington state in 2007. The 2007 legislation was expanded in 2008 and again on May 18, 2009, when Washington Governor Chris Gregoire signed a law stating that state-registered domestic partners shall be treated the same as married spouses, receiving equal treatment to the extent that does not conflict with federal law. The problem is that registered domestic partners in Washington state have to wait for the feds to catch up with our state laws before there can be true equality.

What Are the Requirements to Be in a Domestic-Partnership?

To receive the same state-conferred benefits as married couples, domestic partners must register with the Washington Secretary of State. To qualify to register, both individuals in the domestic partnership must:
- Be at least 18 years old
- Live together in the same residence
- Not be related to each other in closer kin than second cousin
- Not be married or in a registered domestic partnership with another person
- Be either the same sex or age 62 or older (at least one partner)

What Are the Benefits of Domestic Partnership?

Among other things, Washington's domestic-partnership law granted the following benefits:
- Retirement and disability survivor benefits
- Access to health care records, hospital visitation and participation in medical decisions
- The right to inherit from a partner and to distribute the partner's estate when there is no will

What Are the Pitfalls of the Conflicts Between State and Federal Laws?

Over the years, the system of community property rights and obligations in Washington state has evolved to work in tandem with federal laws. Until the federal government completely catches up to the equal rights and obligations conferred in Washington state laws, however, the result will continue to be unfair.

The federal tax code is a perfect example. Even as recently as 2005, there was no room in the Internal Revenue Code for same-sex couples and domestic partners. But in 2011, the IRS began reversing some of its prior positions. For example, for the tax year 2010, registered domestic partners were required to report (still on separate tax returns) half of the combined income of their household. There are pros and cons to this new law, depending on the circumstances of the couple.

Unfortunately, when it comes to registered domestic partners who decide to go their separate ways, there are still some strides to be made in the federal tax code. For example, in Washington state, upon the dissolution of a domestic partnership, a former partner may be ordered by a judge to pay child support or spousal maintenance (alimony). In Washington state, the right to obligation for the lower-wage earning spouse was intended to work in tandem with the federal tax code because for opposite-sex couples, alimony is tax deductible to the person paying it. The problem is that the federal tax code hasn't caught up to Washington state. So, alimony or spousal maintenance payments are not deductible for same-sex couples.

Equally disturbing, opposite-sex spouses can transfer property and retirement assets tax-free in divorce settlements. But when registered domestic partners try to transfer assets to one another in the process of de-coupling, every transaction is a taxable event. In other words, when registered domestic partners split up, they have to pay Uncle Sam to do it.

Even more troubling, because of the updates in Washington state registered domestic partnerships, there are people who registered as domestic partners in 2007 before it became legally possible to award spousal-maintenance and attorneys fees. As a result, there are some people who unwittingly now have obligations that did not exist when they decided to register. To add insult to injury, those spousal-maintenance payments are not recognized as tax-deductible by the IRS.

Washington's laws regulating domestic partnerships are intricate, and the interplay between federal and state law can make domestic partnerships even more complex. If you have questions about whether to register as a domestic partner or what to think about if you want to dissolve your domestic partnership, contact an experienced family law attorney in your area.

Article provided by DuBois Cary Law Group, PLLC
Visit us at www.duboislaw.net/