How a Domestic Partnership Compares to a Marriage, Legally Speaking
What the law says in New York
on September 29, 2022
When Obergefell v. Hodges was decided by the U.S. Supreme Court in 2015, legalizing same-sex marriage throughout the country, the legal protections for domestic partnerships in some states ended or were phased out. New York, however, has maintained such protections for all interested couples.
A domestic partnership is, simply put, a legal relationship for close and committed couples. “It’s a recognition that they are in a special committed relationship while affording some of the rights that married couples receive without the formalization of a marriage,” says Andrea M. Brodie, a family law attorney at Abrams Fensterman.
A couple in a domestic partnership in New York City can use family leave for bereavement and childcare, Brodie says. Domestic partners are eligible for health benefits, life insurance and death benefits. A person can also visit their domestic partner in hospitals, prisons and other New York City institutions.
Where domestic partnerships fall short is in the realm of asset protection.
In a marriage, “whatever you owned together would be unassailable by individual creditors,” says Vesselin Mitev, a family law attorney at Mitev Law Firm. “Not the same thing with domestic partnership. You have to specifically title assets so as to avail yourself of such a protection, such as joint tenants with right of survivorship, in order to protect them from creditors against the other.”
If one person in a marriage dies, the spouse automatically gets ownership of a shared house whether their name was on the deed or not, says Mitev. “Not the same with domestic partnership,” he says. “If you buy a house with your domestic partner, unless it specifically says on the deed ‘joint tenants with rights of survivorship’—meaning exactly that: you die, your rights pass on to the person that survives you—that house does not belong to you. Only half of the house belongs to you.”
Additionally, domestic partners do not have spousal privilege, which is protection from testifying against their partner in court. A domestic partner also cannot automatically commence a wrongful death action, Mitev says.
The dissolution of a domestic partnership also differs from that of a marriage. Spousal support is not involved, and issues like custody and division of real estate would have to be addressed under separate legal proceedings. “Whereas if it was a marriage, those could all be addressed as part of a formal divorce,” Brodie says.
To qualify for a domestic partnership, a couple must meet requirements that go beyond that of a marriage, including living together for six months without being in a previous partnership during that time. Further rules and regulations vary by jurisdiction. “If someone is considering it, they really should contact a local attorney in that jurisdiction to find out what’s required,” Brodie says.
A common misconception is that domestic partnership is the same as a common-law marriage. Not so, says Brodie. “Common-law marriage basically affords the rights of a marriage without having a formal ceremony. New York requires a formal ceremony.”
New York is one of the few states that does not have common law, and never will, Mitev says. “The concept behind common law marriages is that it’s community property. The property that you accumulate together, regardless of whether or not you’re married, by being together, you each get a 50% ownership stake,” Mitev says. “Domestic partnerships are not presumptively that. Anything you accumulate, absent a writing to the contrary, still remains your personal property and the other person’s personal property.”
Historically, couples chose domestic partnerships because they weren’t able to legally marry, Brodie says. “I don’t know if there’s a large percentage of people that would obtain a domestic partnership now, since same-sex marriage is permissible,” she says.
“Most people just don’t bother with it,” Mitev says. “They’re either living with someone and that’s just the deal, or they’re not.” It could be a good fit for young couples who are looking to share benefits such as health insurance but aren’t ready to be married yet, Mitev says. “That’s the compromise.”