An Elder Law Practitioner's Guide to the NJ Domestic Partnership Act

November 27, 2004

Although much of the recent discussion on the Domestic Partnership Act of 2004 (DPA) has been exclusively focused on the extension of legal rights to same-sex couples, the limited protections of the Act are also available to unmarried seniors. Thus, elder law practitioners must be prepared to discuss the ramifications of the Act with their clients.

This article discusses the features of the Act — and its omissions — in light of their applicability to New Jersey's seniors. In particular, the article reviews the effect of the Act in several critical areas of elder law, including health care, estate planning, taxation, senior housing, and retirement benefits. In each of the areas discussed, I have also pointed out some areas that, because they are not covered in the DPA, require special planning in order to ensure the couple is adequately protected.

Eligibility Requirements

Assuming they meet all other requirements, that is, they are unmarried,1 not in another domestic partnership,2 unrelated,3 share a common residence4 and agree to joint responsibility for basic support,5 two persons of the same or opposite sex who are at least 62 years of age may register as domestic partners.6

In general, common residence means the partners share a home in New Jersey but does not require that it be the partner's sole residence.7 An important consideration for older partners is that one partner may reside temporarily elsewhere, on either a short-term or long-term basis, for reasons that include medical care, so long as there is intent to return to the shared residence.8

Non-residents of New Jersey may register if at least one partner is a participant in one of several state-administered retirement systems.9 Thus, a retiree living in another state would be entitled to domestic partnership registration so long as he or she were participating in one of the eligible plans. The wisdom of this is discussed elsewhere in this article.

Registration as a Prerequisite

Most of the rights and obligations under the Domestic Partnership Act are predicated on the couple becoming registered.10 Registration is a simple process, entailing the filing of a sworn Affidavit of Domestic Partnership with a local registrar at a cost of $28.11 Upon filing, the partners receive a Certificate of Domestic Partnership, to be used as proof of registration.12

Couples that have registered under another state's civil union, domestic partnership or reciprocal beneficiary relationship laws are recognized by the Act.13 These couples receive all of the rights and responsibilities of couples that have registered in New Jersey.14

Unregistered Partners

Couples who have not registered but who otherwise meet the requirements may be treated as registered in medical emergencies by one or both stating that they are unregistered but otherwise meet the registration requirements.15 Emergency recognition provides only the right to accompany a partner during emergency transport, and visitation rights.16

Termination

In order to terminate a registered domestic partnership, one or both partners must file for termination in the Family Part of the Superior Court.17 The reasons for termination parallel the reasons for divorce.18 The Court may, but is not required to, effectuate an equitable distribution.

A registered domestic partnership between opposite-sex partners is automatically terminated if the couple subsequently marries.19

Rights and Obligations of Registered Partners

A complete discussion of the rights and responsibilities of registered partners is beyond the scope of this article. However, the Act provides several rights that are important to seniors. These are:

• Statutory protection from discrimination under the New Jersey Law Against Discrimination (NJ LAD);20
• Visitation rights in hospitals and other health care settings;21
• Health care decision rights;22
• Limited taxation relief;23 and
• Health and state pension benefits.24

The obligations under the Act are few and somewhat murkily defined.25 Registered partners are obliged to have a common residence26 and to be jointly responsible for each other's basic living expenses,27 including basic food and shelter,28 should one partner become unable to do so.29 Although the DPA strictly limits the obligations under the Act to those enumerated in the law itself,30 the partners may contractually add obligations or alter existing ones.31

Unfortunately, the Act fails to address some critical elder law areas, such as guardianship and surrogate decision-making, or real estate or other property transfers.

On the other hand, some limitations in the DPA and/or federal law are actually beneficial to older domestic partners. For example, unlike married couples, partners are not jointly liable for each other's individual debts, contracted before or during the partnership.32 In another example, since the partners' support obligations cease when the domestic partnership is terminated, couples are insulated from any court-ordered support.33

It will take some time before the courts and/or the legislature correct the omissions and oversights in the DPA. In the meantime, elder law practitioners must be prepared to fill in the holes in New Jersey and federal law through the use of appropriate planning and document preparation.

Federal Rights

Domestic partnership is not recognized under federal law, which is currently limited by the Defense of Marriage Act.34 Thus, the DPA has no effect on federal entitlements, such as social security, federal rights, including immigration, federal taxes, or any other law or regulation that relies upon a federal definition of marriage or spouse.35

Jurisdictional Limits

With the exception of California,36 New Jersey's DPA is not currently recognized in any other state. Opposite sex couples in particular, accustomed as they are to the universal recognition of marriage in the United States, may not realize that the rights granted under the Act stop at the New Jersey border.

The careful practitioner must remind domestic partners who own property outside of New Jersey, or who vacation or winter in another state or country, that they will still need to use various contractual means to protect their partnership outside the state.

Discrimination

The Domestic Partnership Act adds registered domestic partnership as a protected class in the New Jersey Law Against Discrimination (NJ LAD).37 With this addition, it is now illegal to discriminate against domestic partners in employment, public accommodation, housing, and the extension of credit.38 Thus, it would be illegal discrimination for an age-restricted community to refuse to rent or sell to registered domestic partners on the basis that one partner does not meet the age requirement if there were not a similar restriction for married couples.39 It would also be a violation of NJ LAD if a nursing home treated domestic partners differently than married couples.40

The Act carves out several exceptions to NJ LAD in regard to domestic partner benefits. First, it is specifically not a violation of LAD for an employer other than the State to refuse to provide domestic partner benefits.41 Second, it is not a violation of LAD to provide health and pension benefits to same-sex but not opposite-sex partners.42

Advanced Directives and Surrogate Decision Making

Although planning for incapacity and end-of-life matters should be routine for couples of all ages, it is particularly important for unmarried partners who have no more legal right to make decisions in these areas than any other interested stranger. There are numerous cases where domestic partners have been prevented from hospital visitation or making the same kind of life-and-death health care decisions that married couples are routinely allowed, even when the partners have prepared appropriate advance directives.

With the enactment of the Domestic Partnership Act, several of the more important health care directives and visitation rights that domestic partners had to contractually provide are embodied in the law. Although no longer as necessary in New Jersey, many of these directives must still be prepared in order to protect couples when they are outside New Jersey.

Advance Directives

The DPA modified the Advance Directives for Health Care Act43 to include a patient's domestic partner among those having a right to be designated as a health care representative.44

The practical effect of this change in the law may be negligible, since a patient could already declare any person of the declarant's choosing as their designated health care representative in a written directive.45 Perhaps the only substantive change is that, previously, a patient's domestic partner could not be named in such a directive if he or she is an operator, administrator or employee of the health care facility in which the declarant is a patient or resident.46 Now, a domestic partner is considered an exempt family member.47

Guardianship

In 1983, Minnesota resident Sharon Kowalski was hit by a drunk driver, leaving her severely disabled from a head injury. When her domestic partner of over four years, Karen Thompson, told Sharon's father, Donald, the nature of their relationship, he reacted first with disbelief, then with disgust. In July 1985, Donald obtained legal guardianship over his daughter without even a court hearing, moved Sharon to a nursing home some distance from the home she shared with her partner, and gave orders preventing Karen from visitation. After a long fight, guardianship was awarded to Karen in 1991.

Although the case of Sharon Kowalski occurred in Minnesota, it is illustrative of the obstacles same-sex couples encounter as a result of state laws that fail to equate their relationship with that of married couples. Unfortunately, the DPA failed to address this important area.

For same-sex couples in particular, guardianship can be especially problematic. First, because the current statute fails to equate the domestic partnership with that of a married couple in regard to guardianship and conservatorship, a domestic partner has no more right to commence a proceeding or to be named guardian over his or her partner's person or estate than any other mere stranger.48 Second, same-sex couples frequently conceal the nature of their relationship from their families. In some cases, the couples face hostility from one or both partners' family as a result of their sexual orientation, who may view the relationship as involving undue influence. Third, New Jersey has no formal way for a person to name their preferred guardian and to disqualify others from being named.

Thus, a registered domestic partner, faced with a Sharon Kowalski-type situation, would have to undergo a potentially contentious contested guardianship proceeding with an uncertain outcome. Considering that the Domestic Partnership Act was intended to prevent such emotionally wrenching battles, the Act has failed in this regard.49

Until such time as the laws are amended to fix this oversight, domestic partners should be counseled to make known their wishes in a form of advance directive called a designation of guardianship. This document, which should be witnessed, allows a person to make known their wishes in regard to the naming of guardians in the event of legal incapacity.

Estate Planning

The Domestic Partnership Act effects estate and tax planning in several ways. First, it exempts inheritance transfers between domestic partners, in the same way as transfers between married spouses.50 The exemption applies to any property that passes by will51 or in contemplation of death,52 and includes the transfer of jointly owned property pursuant to a right of survivorship.53 Second, it provides that the payment of any pension, annuity, retirement allowance or return of contributions payable to a registered domestic partner under a qualified pension or retirement plan would be exempt from state taxation.54 Finally, it provides for a $1,000 additional exemption for a domestic partner who does not file a separate income tax.55

The DPA clearly contemplates that domestic partners only hold joint interest in property they intend to acquire jointly; each partner retains individual ownership in any property he or she individually acquires during the partnership. First, it holds that if one partner is sued, his or her partner's property is not at risk.56 Second, in termination proceedings, the court shall divide and distribute the jointly held property.57 Third, the court is instructed it may, but is not required to equitably distribute property that was legally and beneficially acquired by both domestic partners or either domestic partner during the domestic partnership.58

The Act made no change to the rules of intestacy, nor did it equalize tax treatment of domestic partners in regard to gifts or other property transfers. Furthermore, it did not provide for joint tax filing by domestic partners, something that has been widely and erroneously reported.

There are several other areas of taxation that, because they are unmodified by the DPA, continue to result in unequal treatment of domestic partners as compared to married spouses. These include the estate tax, gift tax, real estate transfer fee, which applies to transfers between domestic partners but not between spouses, and a sales tax on the transfer of a vehicle title from a deceased partner to his or her domestic partner. On the other hand, the current property tax rebate program results in a slight benefit to domestic partners, because they are not required to aggregate their income.

Pension and Health Care Benefits

For opposite-sex couples, there is little relief in this area. First, no employer is required to extend domestic partnership benefits to an opposite sex partner and his or her dependents, even if provided to a same-sex couple of similar age.59

Second, the Act has no effect on federal programs, such as Medicare, Medicaid and Social Security, even if such program is administered by the state.60

On the other hand, an employer may voluntarily offer domestic partnership benefits to its qualified opposite-sex employees and retirees, as well as to same-sex partners.61 However, if it does so, it is entitled to require that the employee contribute a portion or even the full amount of the cost for dependent coverage, even if it does not require this for married couples or same-sex partners.62 To the extent that the employer pays the dependent cost, the employer-paid portion is considered imputed income for federal tax purposes only, and is subject to federal withholding.63

Joint Liability for Medical Expenses

As one of the requirements for registration, domestic partners agree to provide for each other's basic living expenses during the duration of the partnership.64 The Act defines basic living expenses to include the cost of health care, if some or all of the cost is paid as a benefit because a person is another person's domestic partner.65 What isn't clear from this definition is whether this means that a partner is responsible for medical care only if it is a benefit of employment.

Because of this uncertainly as to whether couples can be held responsible for each other's medical expenses, domestic partners should be made aware that any jointly-owned property may potentially be subject to a lien for such expenses.

Partners should also be aware that some facilities might seek to have both partners contractually agree to be responsible for each other's medical expenses. If such an agreement was required prior to the provision of medical services, and it was not equally applied to married couples, the facility would be in violation of the New Jersey Law Against Discrimination.66

Miscellaneous Considerations

The Domestic Partnership Act allows registered partners to give certain consents on behalf of their incompetent or deceased partner.

First, a domestic partner may consent to the disclosure of the health record of an incompetent or deceased partner who is known to or suspected of having HIV infection or AIDS.67 Second, a registered partner may give written consent for a necropsy or autopsy.68 Third, a registered partner may gift all or part of his or her partner's body69 or may consent to organ and/or tissue donation.70 This brings up another unfortunate oversight — possession and disposition of remains.

Under the laws regulating cemeteries and funeral directors, the next of kin, as that term is usually defined are given the right to possess and dispose of a persons remains. This definition does not include domestic partners, who therefore have no rights to their loved one's remains.

Only in the limited circumstance that arises when a deceased partner has left no evidence of an anatomical gift or a contrary intent, thereby giving the choice to his or her partner, is the deceased partner entitled to receive back the remains for disposition.71

In order to avoid this, domestic partners of all ages should be counseled to execute a separate Disposition of Remains document, giving their partner the right to possession and disposition of their remains. This document provides the written instructions on which a funeral director or morgue can release the remains and carry out funeral arrangements.

Summary

The Domestic Partnership Act has changed the legal landscape when it comes to unmarried older couples, both heterosexual and homosexual.

Prior to the enactment of the DPA, there were no legal protections for unmarried couples other than contractual. For same-sex couples, these agreements had to be particularly well drafted in order to withstand legal challenges from family members who were often openly hostile to the relationship.

With the enactment of the Domestic Partnership Act, some protections are now embodied in the law. However, some vital protections that are taken for granted by married couples are missing, and couples will need to ensure that they contractually provide for these missing areas.

As in marriage, domestic partnership registration creates a legal relationship that can only be terminated by order of a judge. Couples will still need to consider their entire living situation when considering how best to protect their relationship. In particular, couples need to evaluate the following:

• Their expected medical needs;
• Their future housing requirements;
• Their estate-planning needs;
• Their future state residency plans;
• Their end-of-life wishes;
• Their particular tax situation; and
• The degree of commitment to each other.

Each of these areas should be carefully evaluated, with the advice of an elder law practitioner, before a couple legally commits to each other as registered domestic partners.

Endnotes

1. N.J.S. 26:8A-4b(3).
2. Id. If they were, the prior domestic partner-ship must have been terminated at least 180 days before or by the death of the former partner. N.J.S. 26:8A-4b(9).
3. N.J.S. 26:8A-4b(4).
4. N.J.S. 26:8A-4b(1).
5. N.J.S. 26:8A-4b(2).
6. N.J.S. 26:8A-4b(5).
7. N.J.S. 26:8A-3.
8. Id.
9. Id.
10. With the exception of the medical emer-gency provision, N.J.S. 26:8A-6f, all rights and obligations require registration as provided in N.J.S. 26:8A-4a.
11. N.J.S. 26:8A-4a. The fee is set by the De-partment of Health and Senior Services.
12. N.J.S. 26:8A-8b.
13. N.J.S. 26:8A-6c.
14. Until the extent of recognition is clarified by the courts, such couples should be considered to have at least the rights and obligations un-der the New Jersey DPA.
15. N.J.S. 26:8A-6f.
16. Id.
17. N.J.S. 26:8A-10a(1). Although not yet re-flected in the Rules of Court, the Family Part has jurisdiction over civil actions in which the principal claim is unique to and arises out a … family-type relationship. R. 4:3-1(a)(3).
18. N.J.S. 26:8A-10a(2).
19. N.J.S. 26:8A-10b.
20. N.J.S. 10:5-5 and 10:5-12.
21. N.J.S. 26:2H-12.22.
22. N.J.S. 26:2H-32, 26:2H-57 and 58, health care directives; 26:5C-12, disclosure of re-cords; 26:6-50, consent to autopsy or ne-cropsy; 26:6-57 to 58.1 and 63, consent for body, organ and tissue donation.
23. N.J.S. 54:34-1 to 34-4, inheritance transfer tax exemption; N.J.S. 54A:1-2 and 54A:3-1, income tax deduction.
24. N.J.S. 52:14-17.26, 43:15A-6, 43:16A-1, 43:6A-3, 18A:66-2, and 53:5A-3; N.J.S. 17:48-6bb, 17:48A-7aa, 17:48E-35.26, 16B:26-2.1x, 17B:27-46.1bb, 26:2J-4.27, 17B:27A-7.9, 17B:27A-19.12, 17:48C-8.2, 17:48D-9.5, require various forms of health and dental plans to make domestic partners benefits available.
25. N.J.S. 26:8A-6.
26. N.J.S. 26:8A-4b(1).
27. N.J.S. 26:8A-4b(2).
28. N.J.S. 26:8A-3.
29. Id.
30. N.J.S. 26:8A-6a.
31. N.J.S. 26:8A-6c.
32. N.J.S. 26:8A-6g.
33. N.J.S. 26:8A-6b.
34. P.L.104-199 (1996).
35. In determining the meaning of an Act of Congress, or of any ruling, regulation, or inter-pretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife. 1 U.S.C. 7.
36. California Domestic Partner Rights and Re-sponsibilities Act of 2003, AB 205, effective January 1, 2005.
37. N.J.S. 10:5-5qq.
38. N.J.S. 10:5-12.
39. Id.
40. Id.
41. N.J.S. 34:11A-20.
42. N.J.S. 26:8A-11.
43. N.J.S. 26:2H-53 et seq.
44. N.J.S. 26:2H-57 to 58.
45. N.J.S. 26:2H-58a (1).
46. N.J.S. 26:2H-58a (2).
47. Id.
48. In re Tierney, 175 N.J. Super. 614 (Law Div. 1980); In re Schiller, 148 N.J. Super. 168 (Ch. Div. 1977).
49. All persons in domestic partnerships should be entitled to certain rights and benefits that are accorded to married couples under the laws of New Jersey, including: … the right to make medical or legal decisions for an inca-pacitated partner. N.J.S. 26:8A-2d.
50. N.J.S. 54:34-2.a (1).
51. N.J.S. 54:34-1a and b.
52. N.J.S. 54:34-1c.
53. N.J.S. 54:34-1f.
54. N.J.S. 54:34-4j.
55. N.J.S. 54A:3-1 (b)1.
56. N.J.S. 26:8A-6g.
57. N.J.S. 26:8A-10a (1).
58. N.J.S. 26:8A-a (3).
59. N.J.S. 26:8A-11.
60. Such programs are currently limited by the Defense of Marriage Act, which the definition of spouse to a person of the opposite sex who is a husband or wife. 1 U.S.C. 7.
61. N.J.S. 26:8A-6d.
62. N.J.S. 34:11A-20a.
63. The New Jersey Division of Revenue does not consider this taxable income for state pur-poses.
64. N.J.S. 26:8A-4b (2).
65. N.J.S. 26:8A-3.
66. N.J.S. 10:5-12f (1) and possibly 12i.
67. N.J.S. 26:5C-12.
68. N.J.S. 26:6-50.
69. N.J.S. 26:6-58.
70. N.J.S. 26:6-58.1.
71. N.J.S. 26:6-63.