Domestic Partner Benefits: Defining Domestic Partners and Dependents
If an employer goes the route of requiring documentation of domestic partner eligibility, it can either define their own requirements or rely on existing legal documentation such as a domestic partner registration, civil union or marriage.
- Marriage & Relationship Recognition for same-sex couples in the United States
The Human Rights Campaign Foundation encourages employers to treat all beneficiaries equally when requesting documentation to determine eligibility. For example, if an employer requires documentation for partner benefits, they should similarly request documentation for spousal benefits.
Recommendation
When defining "families" for employment purposes such as benefits, include "partners" (as well as their children and/or other eligible dependents) as family members equal to opposite-sex spouses. If the employer operates in a state where marriages are available for same-sex relationships, or where civil unions are to be treated as marriages under state law, the employer should accordingly modify their definition of "spouse" to include such civil marriages or unions for all appropriate purposes.
If an employer requires proof of eligibility of family members (e.g.: in order to enroll an opposite-sex spouse in benefits, an employee must provide proof of marriage license), and would also require proof of eligibility of same-sex partners, the employer should allow any one of the following:
- Partnership affidavit
- Local or state domestic partnership registration or civil union
- State marriage license
- Marriage licenses issued in other countries
It is not recommended to only allow one of the above types of proof – employees may not be able to or, for legal reasons, may not wish to obtain a particular government-recognized proof of same-sex relationship. For example, allowing only a state marriage license in a state that does not offer marriage would be unnecessarily restrictive. As of March 2008, Massachusetts is the only state to provide marriage for same-sex couples, and same-sex couples residing in nearly all other states cannot marry in Massachusetts.
Similarly, employees that have obtained government-recognized proof of same-sex relationship should not have to go through the additional burden of completing a domestic partnership affidavit.
Qualifying Events
Employers should recognize the completion of an affidavit or the attainment of government recognition of a same-sex relationship as a qualifying event suitable for enrollment in benefits outside of the normal open enrollment period.
Government Recognition as Proof of Relationship
Rather than requiring employees to complete a domestic partnership affidavit and various documentation, many employers also accept a government form of recognition of relationships, such as local or state domestic partner registrations, state-level civil unions or marriages or partnerships entered into in other countries. Doing so takes the burden of defining eligibility for partner benefits off of the employer, and allows the employee to determine which form of recognition is most suitable for them, as the laws and eligibility associated with the various government entities vary. Doing so can significantly decrease the burden on the employee and the employer, especially in situations such as when an employer performs an audit of its benefits plan and beneficiaries.
Domestic Partner Affidavits as Proof of Relationship
Many employers create a domestic partnership affidavit, which spells out eligibility requirements as defined by the employer, however a January 2005 Business & Legal Reports study found that the number of employers utilizing domestic partnership affidavits is in overall decline.
Affidavits commonly require some form of proof that the individuals are:
- 18 or older
- Not related to each other
- Live together
- Not currently in a domestic partnership, civil union or marriage with a different person
- Mutually responsible (fiscally and legally) for each other
- In an intimate, committed relationship of at least six months’ duration*
*If an employer includes a co-habitation requirement, the Human Rights Campaign Foundation encourages employers to keep such a requirement at six months. The 2005 Hewitt Associates study found that 52 percent of companies require a period of one year, while 44 percent require a period of six months.
Same-Sex and Opposite-Sex Partners
The majority of employers — 58 percent — offer benefits to the same- and opposite-sex partners of their employees. (Hewitt 2005) The Human Rights Campaign Foundation primarily considers whether or not an employer offers same-sex partner benefits. However, because of the varying state laws and policies pertaining to changing the sex marker on identification papers or birth certificates, some transgender people have trouble obtaining marriage licenses and would need opposite-sex partner coverage for their partners.
Eligible Dependents
Employers that recognize an employee’s domestic partner for benefits purposes should ensure that the partner's children are covered as eligible dependents when possible.
