General Provisions

Presented by Amy M. Risseeuw Past Co-Chair of FVYLA Peterson, Berk & Cross, S.C. 200 E. College Avenue Appleton, WI 54911 (920) 831-0300 arisseeuw@pbclaw.com Outline Prepared by Natalie Sturicz-Heiges Co-Chair of FVYLA Hammett, Bellin & Oswald, LLC 675 Deerwood Ave. Neenah, WI 54956-1629 (920) 720-0000 nsturicz@aol.com I. Basic requirements for the two types of domestic partnership A. Chapter 40 i. Created by 2009 Wisconsin Act 28. ii. At least one partner must be a state employee or a public employee participating in State of Wisconsin Department of Employee Trust Funds programs, such as the Wisconsin Retirement System. iii. Must satisfy kinship and age requirements, i.e., must be at least 18 years of age and no more closely related than second cousins. iv. Must share a common residence, although the common residence need not be commonly owned by both partners, and it need not be the sole or primary residence of either partner. v. The partners must consider themselves to be members of each others immediate family. See Wis. Stats. 40.02(21d)(d). vi. The partners must agree to be responsible for each others basic living expenses. See id. vii. There is no requirement that the partners be of the same sex, but same-sex couples can apply. viii. Must complete an Affidavit in order to receive spousal benefits through the Department of Employee Trust Funds. Do not need to register to obtain this classification, but will not receive other statutory benefits without registration. ix. Must complete an Affidavit of Termination of Domestic Partnership. B. Chapter 770 i. Also created by 2009 Wisconsin Act 28. ii. No requirement that either partner be a state or public employee, but the partners must be of the same sex. iii. Same age, kinship, and residency requirements as Chapter 40.

iv. v.

vi. vii.

Cannot be married to or in a domestic partnership with anyone else. Must register Chapter 770 domestic partnerships with County Registrar of Deeds. This results in a Declaration of Domestic Partnership. Brings certain rights under state law, as opposed to merely qualifying the partners for state employee benefits. Easily dissolved, but Notice of Termination must also be filed with the County Clerk in the county where the domestic partnership is registered.

II.

Basic Registration and Termination Procedures for a Chapter 770 Domestic Partnership A. Registration 1. One or both partners must have resided in the county of application for at least 30 days. 2. The partners must fill out an application form at the County Clerks office. 3. They must pay the filing fee, which is the same as the fee charged to apply for a marriage license. 4. Like applying for a marriage license, must provide documentation including a birth certificate, photo id, proof of residency, and proof of the manner in which past marriages or domestic partnerships ended. 5. Once application process is complete, the partners receive and sign a Declaration of Domestic Partnership, which must be recorded with the Register of Deeds and forwarded to the state Registrar of Vital Records. See Wis. Stats. 770.10. B. Termination 1. Domestic partnerships may be terminated by either or both partners. 2. One or both partners must file a notice of termination with the County Clerk in the same county that issued the Declaration of Domestic Partnership. 3. If only one partner signs the Notice, that partner must also file an Affidavit of Service or Publication warranting that the other partner received the Notice. 4. The marriage of either party also terminates the domestic partnership. However, only marriages that are valid in the State of Wisconsin will terminate a domestic partnership. Therefore, a same-sex marriage of one or both partners conducted in another state would not terminate a Wisconsin Domestic Partnership. 5. Upon termination, the County Clerk issues a Certificate of Termination, which must also be recorded with the Register of Deeds and forwarded to the state Registrar of Vital Records. Wis. Stats. 770.12(3).

6.

The termination will not be effective until 90 days after recording. Wis. Stats. 770.12(4)(a).

Employment and Labor Law

Presented by Ryan Thompson Former Co-Chair of FVYLA Silton, Seifert & Carlson, S.C. 331 E. Washington St. Appleton, WI 54911 (920) 739-2366 ryan.thompson@sscglaw.com Outline Prepared by Chad Wade Co-Chair of FVYLA Davis & Kuelthau, S.C. P.O. Box 1278 Oshkosh, WI 54903-1278 (920) 232-4843 cwade@dkattorneys.com I. 2009 WISCONSIN ACT 28 CREATED TWO CLASSES OF DOMESTIC PARTNERS A. Registered Domestic Partners Couples that choose to register under Wis. Stats. 770.01 et. sec. by meeting the following criteria: 1. 2. 3. Each individual is at least 18 years old and capable of consenting to the domestic partnership; Neither individual is married to, or in a domestic partnership with, another individual; The 2 individuals share a common residence. Two individuals may share a common residence even if any of the following applies: a. b. c. 4. Only one of the individuals has legal ownership of the residence, One or both of the individuals have one or more additional residences not shared with the other individual, One of the individuals leaves the common residence with the intent to return.

The 2 individuals are not nearer of kin to each other than 2nd cousins, whether of the whole or half blood or by adoption; and

5. B.

The individuals are members of the same sex.

Unregistered Domestic Partners Couples that do not register that meet the following criteria as provided in Wis. Stats. 40.02(21c) & (21d): 1. 2. 3. 4. 5. 6. Be at least 18 years of age and otherwise competent to enter into a contract; Neither individual is married to or in a domestic partnership with another person; Neither individual is related by blood in any way that would prohibit marriage under Wisconsin law; The two individuals consider themselves to be members of each others immediate family; The two individuals agree to be responsible for each others basic living expenses; and The two individuals share a common residence.

C.

Important Notes 1. 2. There is no romantic component to either test. Registration is limited to same sex couples, but unregistered domestic partners may be same-sex or opposite sex couples that meet the criteria. The test for Unregistered Domestic Partners is much murkier.

3. II.

EMPLOYMENT RIGHTS THAT APPLY TO BOTH TYPES OF DOMESTIC PARTNERS A. Wisconsin Family and Medical Leave Act 1. Provides up to two weeks of unpaid leave for an employee to care for a domestic partner with a serious health condition or the parent of an employees domestic partner with a serious health condition. Does not include coverage for caring for the child of the employees domestic partner. For WFMLA purposes domestic partner includes both registered and unregistered domestic partners. How does an employer verify that an employee who requests WFMLA leave meets the test for unregistered domestic partner? 5

2. 3. 4.

B.

State Health Insurance Plan Coverage 1. 2. 3. 4. The State Health Insurance plan now covers registered and unregistered domestic partners of employees. There is no mandate for domestic partnership coverage in self insured plans or privately insured plans. Will there be a trickle down effect? The negative tax implications of providing health insurance coverage for domestic partners: a. Currently, the Federal tax code does not consider the premiums paid by employers for health insurance coverage for an employee, employees spouse, or employees dependent as taxable income. This exception from income does not apply to insurance coverage for domestic partners unless they meet the test for a qualifying relative, which is: i. The domestic partner has the same principal place of abode as the employee and is a member of the employees household; The employee provides over half of the domestic partners support for the year.

b.

ii. c.

If a covered domestic partner is not a qualifying relative the value of the health insurance coverage must be included as imputed income to the employee. The imputed income is subject to the federal income tax, FICA, and Medicare withholding requirements. How does the employer determine the value of the health insurance coverage? i. ii. Impute the single premium rate. Impute a percentage of the single premium rate.

d. e.

The Wisconsin Department of Revenue and IRS have stated that they will accept any reasonable estimation of the value of insurance coverage for non-dependent individuals.

Effects of Domestic Partnership Statutes on Family Practice

Presented by Natalie Sturicz-Heiges Co-Chair of FVYLA Hammett, Bellin & Oswald, LLC 675 Deerwood Ave. Neenah, WI 54956-1629 (920) 720-0000 nsturicz@aol.com I. Rights Afforded to Domestic Partners A. Inheritance and Survivorship Rights 1. The right to inherit under the laws of intestacy and the right to intestate share, notwithstanding a pre-partnership will to the contrary. 2. The right to assignment of the deceased partners interest in the partners residence. 3. Probate rights, including allowance from probate court, selection of household goods and personal effects, and exemption of creditor claims. 4. Can receive wages due a deceased domestic partner. 5. Can sue for domestic partners wrongful death. 6. Can receive death benefits through workers compensation. 7. Entitled to crime victim benefits. 8. Presumed joint tenancy when both names appear on title to real estate, unless the deed indicates that the partners intended otherwise. B. Family and Medical Leave Act 1. Domestic partners are entitled to unpaid leave to care for a domestic partner, or the domestic partners parents, who have a serious health condition, for up to two weeks. Wis. Stats. 103.10(3)(b)(c). C. Medical Rights 1. May visit, admit, and share a nursing home room with domestic partner. 2. May access mental health treatment records. 3. Can consent to organ donation and autopsy of domestic partner. D. Insurance 1. May be covered under domestic partners insurance, which is provided by a fraternal benefit society. 2. Domestic Partners are covered as dependents under the Wisconsin HIV/AIDS health insurance programs. 3. Where the domestic partner is an employee of a local government, may be eligible for payment of premiums for health, accident, and life insurance.

E.

F.

Real Estate 1. Real estate titled in the names of both partners is presumed to be joint tenancy unless the deed indicates otherwise. 2. Transfers of real estate between domestic partners are exempt from the real estate transfer fee. Privilege 1. May prevent domestic partner or former domestic partner from testifying as to private communications that occurred during the partnership.

II.

Rights Not Afforded to Domestic Partners A. Property Rights 1. The Domestic Partnership statutes did not alter any portions of Chapters 766 and 767, Wis. Stats. 2. Domestic partnership does not give any property rights to the partners while living, with the exception of the joint tenancy presumption, above. 3. Domestic partnership primarily affects property rights upon the death of one partner. 4. There is no protection in the statutes for a domestic partner who enters the partnership with less property. B. Rights Involving Children 1. Not only is Chapter 767 not affected by the domestic partnership provisions, but also the adoption statutes are unaffected as well. This means that domestic partners cannot perform any type of stepparent adoption in relation to a partners child. 2. Despite the FMLA rights described above, domestic partners are not entitled to unpaid leave to care for a partners child or for birth or adoption by a domestic partner. Wis. Stats. 103.10(3). C. Right to Support 1. There is no provision entitling domestic partners to anything akin to spousal support, even if one partner sacrifices earnings for the benefit of the partnership, and even in a long-term partnership. D. Final Disposition 1. Domestic partners cannot control final disposition of the other partner without a written authorization under Wis. Stats. 154.30(8). Effects of Termination A. After 90 days, all rights listed above afforded to domestic partners terminate. B. The appointment of a domestic partner as an agent in a durable or health care power of attorney is automatically revoked. C. The nomination of a partner to serve in a fiduciary or representative capacity in a will or other governing instrument is revoked. See Wis. Stats. 854.15(3)(e).

III.

D. E. F. G.

H.

Other provisions of a will or other governing instrument which devise property to a domestic partner are automatically revoked. Powers of appointment are revoked. Joint tenancies are severed and terminated. Domestic partners are not automatically entitled to a division of property acquired during the partnership, support from a former partner, or custody or placement of a partners biological or adopted children upon termination of the partnership. Former domestic partners may seek the above legal remedies under other statutory provisions or Wisconsin case law, but they will not be guaranteed a favorable result. See, e.g., Watts v. Watts, 152 Wis. 2d 370, 448 N.W.2d 292 (Ct. Ap. 1989); In Matter of O.G.M.-K., 2010 WI App 90.

Effect of Domestic Partnerships on a Personal Injury Practice

Presented by Amy M. Risseeuw Past Co-Chair of FVYLA Peterson, Berk & Cross, S.C. 200 E. College Avenue Appleton, WI 54911 (920) 831-0300 arisseeuw@pbclaw.com 1. Wrongful Death a. Language in the statute shows in sub(2) that a domestic partner may recover on behalf of the estate. i. Intestate succession statute, Wis. Stats. 852.01, was also changed to reflect that a spouse or domestic partner is first in line for recovery. ii. Note regarding the set-aside provision: domestic partners cannot legally adopt children together in Wisconsin. Single parents can adopt and another adult can become a legal guardian, but a samesex couple cannot achieve the status of dual parents of the child. So, if the partner who is not technically the legal parent of the child passes away, the set-aside provision may not actually apply (even though both partners consider themselves parents in a practical sense). b. The language of subsection four, the loss of society and companionship provision, has not been changed, which suggests that domestic partners are still not legally able to recover for a loss of society and companionship claim. i. Chapter 655, the medical malpractice chapter governing loss of society and companionship claims in a wrongful death situation based on medical malpractice has not been changed either, which suggests domestic partners are not able to bring a claim for loss of society and companionship in a medical malpractice situation. c. Wis. Stats. 895.04 d. (2) If the deceased leaves surviving a spouse or domestic partner under ch.770 and minor children under 18 years of age with whose support the deceased was legally charged, the court before whom the action is pending, or if no action is pending, any court of record, in recognition of the duty and responsibility of a parent to support minor children, shall determine the amount, if any, to be set aside for the protection of such children after considering the age of such children, the amount involved, the capacity and integrity of the surviving spouse or surviving domestic partner, and any other facts or information it may have or receive, and such amount may be impressed by creation of an appropriate lien in favor of such children or otherwise protected as circumstances may warrant, but such amount shall not be in excess of 50% of the net amount received after 10

deduction of costs of collection. If there are no such surviving minor children, the amount recovered shall belong and be paid to the spouse or domestic partner of the deceased; if no spouse or domestic partner survives, to the deceased's lineal heirs as determined by s. 852.01; if no lineal heirs survive, to the deceased's brothers and sisters. If any such relative dies before judgment in the action, the relative next in order shall be entitled to recover for the wrongful death. A surviving nonresident alien spouse or a nonresident alien domestic partner under ch. 770 and minor children shall be entitled to the benefits of this section. In cases subject to s. 102.29 this subsection shall apply only to the surviving spouse's or surviving domestic partner's interest in the amount recovered. If the amount allocated to any child under this subsection is less than $10,000, s. 807.10 may be applied. Every settlement in wrongful death cases in which the deceased leaves minor children under 18 years of age shall be void unless approved by a court of record authorized to act hereunder. e. (4) Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death. 2. Evidence (Privileges) a. Wis. Stats. 905.05 i. Language in the statute was modified to include domestic partners under the spousal privilege evidence laws, so that a domestic partner is able to claim spousal privilege in the same scenarios that apply to husband-wife spousal privilege. ii. This will become relevant in depositions/calling a partner to testify at trial. 1. The same exception still applies regarding when both spouses/partners are named parties in the same lawsuit. 3. Health Care Records a. Wis. Stats. 146.81 now defines person authorized by patient to include a domestic partner of a deceased patient. The practical effect is that now domestic partners, in addition to spouses, may access their deceased partner/spouses confidential health care records, without any type of predeath signature/authorization from the patient. b. In a wrongful death case, a domestic partner would be in a position to sign authorizations/releases related to a partners wrongful death, as long as they are registered under chapter 770. c. Wis. Stats. 146.81(5) 4. Workers Compensation Death Benefits a. In workers compensation, if a worker receives an injury that causes that workers death, dependants are entitled to death benefits. If the death is

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proximately related to the work injury, the benefit is four times the employees annual earnings. Prior to the domestic partnership laws, livein spouses were presumed to be total dependants and received the death benefits without establishing dependency. Prior to passage of this act, case precedent had deemed that live-in partners were not members of the workers family and partners had to establish dependency in-fact. (In other words, had to conclusively establish that the partner was, in fact, dependent on the deceased partner). Now, domestic partners are deemed to be presumptive dependents, according to Wis. Stats. 102.51(1)(a)2m and are eligible for death benefits. b. The law is unclear on whether a surviving partners children will qualify for death benefits, however the usual course of action is for the Court to provide the spouse/partner with one death benefit award with the thought that the spouse/partner will use the money toward his/her own support, as well as toward the support of minor children. If a spouse gets remarried, the Court has the ability to take the remaining future award and give it only to the minor children. Presumably, this would apply as well if a partner entered into a new domestic partnership.

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