Domestic Partnership vs. Marriage: What’s the Difference?

Although many people choose not to marry, there are significant differences between domestic partnerships and marriage. Marriage and domestic partnerships give the partners different legal rights. Generally, married couples have rights that domestic partners do not have. All 50 states legally recognize a marriage. 

Pennsylvania, for example, only recognizes domestic partnerships in certain cities. Therefore, it helps to be aware of the laws in your area before you make a final decision.

Domestic Partnership Definition

A couple may choose a domestic partnership vs. marriage when the couple decides to live together in a committed relationship, share specific responsibilities, open joint bank accounts, create a combined budget, and raise children — if any — without getting married.

A written agreement to live together in a romantic partnership without marriage is called a cohabitation agreement. A cohabitation agreement is more than just agreeing to live together. This document establishes the domestic partnership and defines each partner’s rights and obligations regarding expenses and assets acquired during cohabitation.

The closest alternative to marriage is a domestic partnership. It began in the early 1980s when gay and lesbian couples couldn’t legally marry. By creating domestic partnerships, they could enjoy most of the rights and privileges of married couples. However, U.S. federal laws do not recognize domestic partnerships.

According to current laws in 2023, registration of a domestic partnership with the government establishes a formal legal relationship. In a domestic partnership, couples have some of the rights and responsibilities associated with marriage. A property settlement or death benefit may include dividing or transferring pension benefits or assets following a separation or death. Relationships of this type generally give the couple more rights than common-law marriages but not all marriage rights.

What Does Domestic Partner Mean?

There are some significant differences between a domestic partnership vs. marriage that any couple should consider. Domestic partnerships refer to a relationship between adults in which the partners:

  • Intend to indefinitely remain one another’s, only domestic partner;
  • Hold and maintain an ordinary residence (or would maintain a usual residence but for an assignment abroad or another employment-related, financial, or similar obstacle);
  • Have reached the age of 18 and are mentally competent to enter into a domestic partnership contract;
  • Are jointly responsible for a significant amount of each other’s financial obligations;
  • Do not have a civil union or are not married to anyone else;
  • Do not have any other domestic partners;
  • Are not related in a way that would prevent legal marriage if the partnership is formed in a U.S. jurisdiction;
  • Document compliance with these requirements; 

Understand that knowingly falsifying documentation showing a domestic partnership can lead to disciplinary action. Benefits received based on the falsification may be reimbursable and subject to a criminal charge under 18 U.S.C. Section 1001.

What Is the Difference Between Domestic Partnership and Marriage?

Marriage and domestic partnership, though similar, are significantly different in many ways. Although marriage provides more common advantages than domestic partnerships, those in a domestic partnership vs. marriage can still enjoy some benefits of not being married to their partners. The following are some of these benefits:

  • Partners do not pay a “marriage penalty” tax;
  • Partners can bring up a child together legally;
  • A partner has the legal right to adopt their partner’s child from a previous relationship;
  • Partners can access family health insurance and dental, vision, accident, and life insurance;
  • Partners can receive employment benefits, such as family leaves and bereavement leave; and
  • A partner is permitted to visit their partner in a hospital or prison.
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According to current 2023 laws, not all states recognize domestic partnerships, but legal protection is available in the following areas:

  • California;
  • Colorado (cities of Boulder and Denver);
  • Connecticut (city of Hartford);
  • Hawaii;
  • Illinois (city of Chicago, Cook County, and city of Oak Park);
  • Maryland; 
  • Massachusetts;
  • Michigan (cities of Detroit, Ann Arbor, Kalamazoo, and East Lansing);
  • Nevada;
  • New Jersey;
  • New Mexico (city of Albuquerque);
  • New York;
  • Oregon;
  • Pennsylvania (city of Philadelphia and Bucks County);
  • Vermont (city of Burlington and town of Middlebury);
  • Washington, D.C.;
  • Washington (provided that one partner is not aged 62 years and above);
  • Wisconsin.

The Limits of a Domestic Partnership

Domestic partnerships, referred to as civil unions in some states, generally do not enjoy the full rights and benefits that married couples enjoy. Because federal law does not recognize domestic partnership vs. marriage, this is one of the critical issues that drove the gay marriage debate.

Domestic partners may not have the same rights as married spouses for specific insurance policies. One partner’s lack of insurance may result in lower coverage and higher out-of-pocket medical or dental care expenses. In a marriage, each spouse automatically receives the other’s estate tax-free upon the spouse’s death. However, while domestic partners can inherit their estate, the living partner must pay certain taxes.

Because federal law does not recognize domestic partnerships, income taxes are filed separately rather than jointly. Therefore, these couples cannot take advantage of some of the deductions and credits that married couples can claim. In addition, domestic partners cannot petition for citizenship.

Family law also does not consider domestic partners to be family. Domestic partners would not be regarded as a family under any law that explicitly deals with family, including estate planning laws.

Benefits Available Only in Marriage

In domestic partnership vs. marriage, spouses have far more advantages than domestic partners, including the following:

  • Equal parental rights for children born in the marriage;
  • Legal entitlement to spouse’s insurance, Social Security, and pension benefits;
  • The legal right to inherit the spouse’s estate;
  • Transferring marital assets without tax penalties;
  • Equal or equitable asset division in case of divorce; and
  • Fewer issues when traveling to other countries due to a common surname.

Making the Right Decisions With Your Partner

You should carefully consider whether you and your partner wish to marry or enter a domestic partnership via a special Domestic Partnership Agreement template. A family law attorney may be able to help you understand the benefits and drawbacks of your decision. 

FAQ

What is common law marriage?

A common law marriage is a relationship in which a couple does not have a marriage license. The couple is “married” to their families, friends, colleagues, and neighbors. These partners also usually live like spouses. Common law couples can have joint bank accounts, pay bills, or share ownership of various property types.

A couple should meet the following criteria to be eligible for common-law marriage:

  1. Live in a state where common law marriage is legally enforceable;
  2. Live together for a significant time (e.g., 7 to 10 years);
  3. Have family, friends, colleagues, and acquaintances who consider the couple “married”;
  4. Have joint bank accounts and pay taxes together;
  5. Not to be legally married to other people; and
  6. Be of legal age.

Only the following states recognize common-law marriage:

  • Colorado;
  • Iowa;
  • Kansas;
  • Montana;
  • New Hampshire;
  • Oklahoma;
  • Rhode Island;
  • South Carolina;
  • Texas;
  • Utah.

Who can register a domestic partnership?

Any couple can register their relationship as domestic partners if they meet the following requirements:

  • Both partners are 18 years of age or older;
  • Both partners are mentally competent;
  • Neither of the partners is related by blood to the other;
  • Neither of the partners is married or has a domestic partnership;
  • The couple lives together or intends to do so in a city and state where at least one partner is officially employed;
  • Both partners understand their responsibilities for each other’s well-being and monetary expenses.

What documents do I need to support my domestic partnership?

Often, a person may need to prove the legitimacy of a domestic partnership. For example, an employer will need marital status information to enroll a partner in the employee’s benefits. The following documents may be needed to provide proof of a domestic partnership:

  • Domestic partnership affidavit;
  • Municipal domestic partnership registration;
  • State domestic partnership registration;
  • State civil union license.
Article by Karyna Pukaniuk

Karyna Pukaniuk, Head of Legal at Lawrina. Experienced Tax and Corporate Lawyer, team leader, and legaltech pro. Led and backed the smooth operation of the legal team and accompanied several different projects simultaneously. Worked closely with department's leads, and shareholders and advised them through all legal, regulatory, and risk management matters. Supervised multi-million dollar M&A deals, and actively participated in the company's product development.

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