The Washington Domestic Partner Registration Act of 2007 was a first step in addressing the inequalities of gay couples who cannot marry.¹ It also included opposite sex couples where one partner is 62 or older because “some social security and pension laws nevertheless make it impractical for these couples to marry.”²

Proposed legislation that would supplant and significantly expand the rights created by the Registration Act is now before the Legislature.³ The House passed its bill on February 14; at press time, it was awaiting action in the Senate.

The Registration Act’s Provisions

The pending domestic partnership bill is best understood by first reviewing what the current law does and, more significantly, does not do. The Registra-tion Act provides for the following:

• healthcare decision making and access to healthcare information;
• hospital visitation;
• inheritance (excluding omitted spouse protections and only if there is no current will in effect);
• organ donation;
• recognition on a deceased partner’s death certificate;
• authority to request or authorize an autopsy and to receive the autopsy report;
• make anatomical gifts;
• control over the remains of a deceased partner;
• burial as a couple;
• the right to administer the deceased partner’s estate;
• the right to seek damages in wrongful death actions (previously disallowed by case law);⁴ and
• the right to health insurance benefits if the other partner is an employee of the State.⁵

Just as with the laws relating to spouses, many of these provisions can be superseded by will, powers of attorney, contract or other appropriate instrument.

In my experience, couples who have registered often falsely believed the Act provides more protections than it actually does, leading them to inaction in taking proper estate planning steps. In one case, an elderly couple had registered just days before the death of one of the partners. They had not, however, updated their estate planning documents. Thus, the old, pre-existing will of the deceased partner was not affected by the registration and remained arguably valid. The survivor thus had no statutory claim under the inheritance provisions of the Act, which does nothing to revoke a pre-existing will.⁶ Claims under Washington’s law of “committed intimate relationship” were available, but not the simpler inheritance provisions of the Registration Act.

The Registration Act also does not address property, asset or liability issues upon dissolution nor does it address parenting rights for non-adoptive stepparents. It does not create a family law or a statutory dissolution framework or provide for partner maintenance as the marital dissolution laws do. It does not substitute nor supplant the Washington common law of unmarried, committed intimate couples. It does not address the more than 400 laws in Washington that create rights and responsibilities for married couples.

The Domestic Partnership Bill

Substitute Senate Bill 6716 is 199 pages long in its current iteration. It would address approximately 160 of more than 400 of the rights and responsibilities that married couples have. It addresses major financial and liability issues and includes more obscure provisions on campaign financial disclosure and the testimonial privilege available to spouses.

It constitutes a major change in the law of unmarried couples that, if passed, will require interpretation and clarification, including its impact on the common law of unmarried, long-term committed couples⁷ and the inevitable lack of clarity inherent in the overlay of a new statutory scheme onto the common law. For example, the proposed amendments to RCW § 26.16.030 — defining community property after marriage — only expand that statutory scheme to registered domestic partners. They do not address long-term, committed, unmarried partners who do not register.

In addition to amending the Registration Act, SSB 6716 would amend at least 140 separate statutory provisions, including ones governing probate, benefits, employment, taxes, insurance and dissolution. Tax impacts would include extending to domestic partners the sales tax exemption available for real property transfers between spouses incident to dissolution.

The scope of the legislation also is broad enough to affect very diverse areas of law, including nursing home rights, medical insurance benefits and rights, wrongful death, definitions of domestic violence (to include former domestic partners), crime victims compensation, veterans issues, financial public disclosure law, public assistance and nursing home-elder care (state lien for recovery).

SSB 6716 would require notice to all currently registered domestic partners regarding changes in the law. It would include a brief summary of the changes, including the laws governing community property, transfer of property, taxes, mutual responsibilities for debts to third parties, and other provisions. The notice also would alert currently registered partners, who do not wish to be subject to the new laws, that they must terminate their domestic partnerships prior to the effective date of the law and that future registration dissolutions will require court action, except in limited circumstances (no children, no real estate, etc.)

But potential pitfalls abound. For example, if the tax exemption only applies to registered domestic partners, should separating non-registered couples consider registering for the sole purpose of availing themselves of the exemption? What impact, if any, can we expect on cohabitants who choose not to register?⁸

Advising clients on whether to register and the impact of registering is a daunting task in and of itself. However, just as it is advisable for married couples to have estate planning documents and perhaps a prenuptial agreement in place, this will remain true for registered domestic partners as well. The “Pre-registration Agreement” will — by necessity — emerge. Clients must make informed choices with our assistance and when they register (especially early on in a relationship), and ask questions such as whether they really intend to create community property and joint liability or are just seeking health insurance.

The reasons for registering become legally compelling as the rights available only to registrants far outstrip the protections we can create for our clients via wills, powers of attorney, healthcare directives, contracts relating to property, and debt. As a practitioner in this area of law, I was always aware of the myriad of rights gay couples did not have and the many burdens they did have by virtue of not being able to marry. However, seeing some of these issues addressed in the proposed legislation highlights the enormity of the differential and inequitable impact of the law on couples who cannot marry.

Elaine G. DuCharme is a graduate of the University of Washington Law School (1982) and the University of Washington School of Social Work. She is a sole practitioner in Seattle. Her practice emphasizes unmarried couple’s law as it relates both to estate planning and family law.

1 Washington passed the Washington Domestic Partner Registration Act effective July 2007. As of December 2007, there were approximately 3,000 registered domestic partners in Washington. Previous articles on the Act appeared in the May and September 2007 issues of the Bar Bulletin.

2 RCW § 26.26.010, legislative findings. The Corporations Division link for domestic partnerships is: www.secstate.wa.gov/corps/domesticpartner ships. A brochure can be found at equalrightswashington.org.

3 Senate Bill 6716/House Bill 3104.

4 Under the common law of Washington, wrongful death claims were specifically disallowed for unmarried partners. Thus the question is left unanswered: must couples register to have this right?

5 Domestic partnership health insurance is still taxable under federal law as income to the primary insured (unlike insurance for married couples).

6 The omitted spouse provision in the probate code is not duplicated in the current Registration Act and does not appear to be addressed in the pending domestic partnership bill.

7 In Olver v. Fowler, 161 Wn.2d 655 (2007), the Supreme Court recognized the distasteful nature of the label “meretricious” and adopted “committed intimate relationship.”

8 Section 1201 of SSB 6716 provides that the term “domestic partnership” in the RCW shall be defined to mean “state registered domestic partnership,” and “domestic partner” shall mean “state registered domestic partner.”

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