What is a Domestic Partnership in Florida?
Domestic partnerships are often a creative solution for couples seeking legal recognition in states that do not offer marriage as a legally recognized option. The state of Florida has offered domestic partnerships since 1999, with Pinellas and Miami-Dade counties first approving domestic partnership ordinances in 2012. Broward County followed suit in 2015. In stark contrast to the more than 1,000 federal, state, and local benefits afforded to same-sex married couples, the rights and benefits of domestic partnerships are more or less limited to county-level benefits. At every level of government beyond the state of Florida, a domestic partnership is treated just like cohabiting roommates: they are neither married nor have any default legal right to each other’s assets or benefits.
The only other significant social security benefit granted to domestic partners in the state of Florida equals the ability to be a representative payee over their partner’s social security disability insurance benefits. A person making a social security claim for disability may choose a representative payee to receive their checks on their behalf , and those payees can be either an attorney or a family member. A registered domestic partner can petition the social security administration in their partner’s home state, regardless of the marriage laws in their state. However, those claimed benefits are limited only to the claimant.
In addition, state tax law and recognition of domestic partners are still relatively underdeveloped. As evidenced by litigation under the Defence of Marriage Act (DOMA), many states’ tax courts have long recognized same-sex spouses’ rights as "single" household for tax purposes. In these states, same-sex spouses cannot use the standard married tax rate, identified by the Federal Government as "Marriage on Paper" and unfairly skewed in relation to heterosexual couples. In comparison, Florida courts have aside the analysis of tax occupancy and even granted a binding tax ruling that assumes a registered domestic partner is NOT a dependent of another filer. This makes their relation to the USCIS test for "in support of," for immigration purposes, extremely important.
Florida Marriage Laws
Marriage is a legally recognized union in the State of Florida. Individuals can apply for a marriage license at their county clerk’s office. Couples must be at least 18 years of age. Certain documentation, such as proof of residency and parental consent if under the age of 18, is required by each county. Once issued, there is no waiting period for use of the marriage license. Out-of-state residents may marry in Florida as long as they comply with these rules regarding marriage licensing.
Florida marriage laws include the stipulation that a couple cannot be legally married if they are blood relatives. Spouses must remain or become Florida residents in order to amend their last names. While spousal rights concerning property and finances are similar for domestic partners and married couples, married couples have additional rights that domestic partners should keep in mind when drafting a domestic partnership agreement.
Married partners must publicly end the marriage through divorce proceedings to terminate the marriage. A marriage is legally dissolved when one spouse dies. In either case, a divorce decree or death certificate will need to be filed to terminate the marriage.
Spouses enjoy the right to marital property and a portion of the estate if their spouse dies without a will or if their spouse’s will does not address the disposition of marital assets. Certain assets must be passed on to the surviving spouse if the deceased did not will them to someone else. In addition, many Florida laws address issues that pertain only to married couples.
Important Distinctions Between Domestic Partnerships and Marriage
In Florida, the legal alternative to the common law marriage is the Domestic Partnership. The Domestic Partnership is generally defined in the governing ordinance as an arrangement between two adults by which they share a committed relationship of mutual caring. An adult is defined as a natural person 18 years of age or older.
Unlike marriage, the Domestic Partnership is not recognized by the state of Florida. Although domestic partners may hold certain rights that spouses have, such as hospital visitation rights with respect to each other and the right to receive medical information regarding his or her partner, the Domestic Partnership does not include certain other rights that spouses have, such as the right to make medical decisions for the partner during a medical emergency, the right to sue for wrongful death, and spousal support during divorce or separation. To the extent that such rights do exist in the context of a Domestic Partnership, they exist only by virtue of the specific affirmative steps taken by the municipal government to acknowledge them. For example, in the City of Miami, Domestic Partners may amend the terms of their agreement to permit one partner to make medical decisions for the other partner in the event of a medical emergency. However, no Florida statute confers such rights upon Domestic Partners. In addition, a Domestic Partnership must be registered with the municipality in which one of the partners resides. By contrast, a marriage in Florida is valid and recognized throughout Florida without any further action from the couple or a municipality. In general, Domestic Partnerships are limited to those municipalities with specific enabling regulations (i.e., Garfield County; San Francisco, CA; Seattle, WA, etc.).
Legal Benefits and Disadvantages
Both domestic partnership and marriage come with a range of benefits and limitations applicable in the state of Florida. For starters, neither affords the same level of benefits as marriage.
When it comes to property, domestic partners are not automatically entitled to an inheritance from a deceased partner. This is true even if the survivor is not named in a will. Inheritance rights vary not only by state but by county in Florida, so even if your county recognizes it, there’s no guarantee your partner will inherit a thing from you upon your death.
Healthcare decisions also aren’t automatically afforded to domestic partners in Florida. If you’re gravely injured , your domestic partner may not be allowed to make decisions on your behalf, even though you may want them to do so. The same goes for healthcare decisions in cases of mental incapacitation.
Lastly, taxes are another area where domestic partners don’t enjoy the same benefits as married couples in Florida. Even if they put down a domestic partner as a qualifying person on a tax return, married spouses are able to file together and reduce their tax burden. Domestic partners cannot do this.
Choosing a Domestic Partnership or Marriage
When deciding between a domestic partnership and marriage in Florida, individuals should consider various factors that could impact their decision. Since the two legal statuses have some significant differences, individuals should take time to weigh the pros and cons before choosing one or the other. For both options, the most basic consideration is whether both parties would like to enter into an ongoing, committed relationship that includes not only personal affection and friendship but also financial support. The most fundamental difference between domestic partnership and marriage is that domestic partnership is not available to siblings or parent-child relationships. Thus, domestic partnerships are limited to those who are not closely related and who are not engaged to one another. Other factors to consider when deciding between a domestic partnership and marriage include: It’s important to take stock of what you have before entering into a domestic partnership or a marriage. While a prenuptial agreement can protect your property before marriage, domestic partnerships have no such equivalent. Florida law does not provide individuals with rights to their domestic partners’ property unless otherwise specified under the partnership agreement. It’s in this legal vacuum that some individuals may try to avoid getting married if they have significant assets. For those with less tangible assets, however, domestic partnerships may be a good option as they may receive the benefits of one another’s Social Security and health benefits. Financial rights and responsibilities remain a consideration when making a decision between domestic partnership and marriage. If you think you may be considering a domestic partnership or a marriage, speak with a Florida family law divorce attorney to learn more about your options and the requirements for entering into either legal status. Understanding your obligations — as well as how obligations are different in each structure — can give you a better idea of which choice may be best for you.
Recent Changes in the Law and What it Means
In recent years, Florida has undergone a series of legal changes in relation to domestic partnerships and same-sex marriage. The most significant of these changes came about as a result of the Supreme Court’s landmark decision in Obergefell v. Hodges in 2015 which held that same-sex couples have the right to marry under the Constitution. This decision effectively legalized same-sex marriage in Florida and required the state to recognize such marriages that were contracted in other states.
Despite this ruling, Florida still does not have comprehensive laws governing domestic partnerships. While statewide legislation would provide a clear and uniform standard for domestic partnerships, the lack thereof has essentially left it to local municipalities to create their own. Currently, only a few counties and cities in Florida have enacted laws recognizing domestic partnerships, and each have their own procedures, qualifications, and requirements for registration .
The current patchwork nature of domestic partnerships in Florida means that couples who enter into domestic partnership agreements can only enjoy the legal protections and benefits of those arrangements in the municipalities where they are recognized. Additionally, couples who move out of these localities may find themselves in legal limbo if their new location does not recognize their domestic partnership.
Legislators and advocacy groups are hopeful that, as attitudes continue to shift on this issue throughout the state, Florida will eventually see a change in its laws to ensure that domestic partnerships are recognized statewide. A statewide domestic partnership law would offer many of the same legal benefits as marriage, such as the ability to make medical decisions for a partner, inheritance rights, and tax benefits. However, until such a law is passed, Florida’s current piecemeal approach to domestic partnership registration will continue to exist.