Texas Domestic Partnership Defined
Under Texas law, a domestic partnership is defined as two individuals who are 18 years of age or older who:
- (1) share the same residency and whose relationship is intent on remaining permanent;
- (2) are not married to someone else or are not in a civil union; and
- (3) are not closely related to each other.
Put another way, a domestic partner is a person with whom one shares some kind of intimate and lengthy relationship with exclusivity.
This is similar to marriage except that marriage has to do more with romantic intent . A marriage, for example, must be done in a public space and must be with the intent of forming a lifelong bond.
In Texas, a civil union is not recognized either, so a domestic partnership is the best available option to give benefits to domestic partners. A civil union may be similar to a domestic partnership, but the state of Texas does not recognize civil unions as legally significant relationships, which means civil unions cannot confer the rights and responsibilities associated with marriage.
How to Set Up a Domestic Partnership in Texas
To establish a domestic partnership in Texas, both partners must be at least 18 years old and be competent to enter into a contract. Additionally, both partners must not be married to another person or related to each other within the degrees of kinship that prohibit marriage in the State of Texas. Partners may not be currently legally separated from another person.
While the state of Texas does not currently recognize a domestic partnership or civil union with the same legal standing as a marriage, some cities and counties do offer these benefits.
Generally, the process for establishing a domestic partnership in Texas involves registering as such with a local city or county clerk’s office. For many Texas cities, a domestic partnership registry exists. The City of Austin, for example, has established an Employee Leave Benefits for Domestic Partners policy which extends to domestic partners of City of Austin employees the same leave benefits offered to those in a legal marriage. This policy allows employees to take family leave to care for their domestic partner in the event of a qualifying event. This is similar to what Texas offers to traditional married couples.
In order to register with Austin’s domestic partnership registry, both partners must complete a Declaration of Domestic Partnership and file it with the City Clerk’s office. The City of Austin requires the partners to provide several documents which include proof of the relationship and proof of residence within Austin’s city limits.
Other cities such as San Antonio and Dallas do not offer a domestic partnership registry. However, there are other avenues through which domestic partners can obtain recognition and rights. Similar to a typical legal marriage, many of the rights afforded to domestic partners can be obtained by executing a cohabitation agreement. Domestic partners also have the ability to grant power of attorney and pursue a court order to carry out a decision-maker function in the event either partner is incapacitated.
Though laws and ordinances may change, currently the limited benefits of domestic partnerships in Texas do not extend to property rights. Texas does not recognize common law marriages, which means a domestic partnership is also not considered to provide the same legal benefits and obligations enjoyed by those in a traditional marriage. Any property obtained by either partner during the domestic partnership is considered separate property in Texas.
The Right and Obligations of Domestic Partners
The legal rights and responsibilities of domestic partners in Texas are limited when compared with traditional marriage. While state law does not currently recognize same-sex marriage, domestic partnerships are another way for committed couples to come together under the law. However, health benefits, property rights, and protections are restricted.
Health insurance coverage for domestic partners is normally arranged through the employer. However, the law does require employers to extend health benefits to domestic partners. And, while the federal government does not recognize domestic partnerships, those who have domestic partners as their dependents for tax purposes are not required to pay taxes on that benefit.
Even though domestic partners have the right to make medical decisions for each other, Texas law does not recognize domestic partnerships in the same category as spouses. This means that a domestic partner cannot inherit their partner’s assets if he or she dies without a will. Any right to community property does not normally go to the surviving partner. Instead, the assets are divided among other heirs who are legally recognized.
Another limitation for domestic partners is they cannot jointly adopt a child or apply for a marriage license in Texas. These rights only extend to married couples. Many financial limitations are also similar to cohabitating individuals. Texas does not allow domestic partners to file income tax as married couples or establish joint bank accounts.
Domestic partners in Texas do not have the same legal protections as married couples. For example, domestic violence protection orders do not apply if a domestic partner is physically abusive. This means the other individual does not have recourse if he or she is victim to physical abuse. Domestic partners may not inherit assets if a partner does not have a will.
There are also fewer tax advantages available to domestic partners. Those who are domestic partners are more at risk for owing money to the IRS than a husband and wife might be. If a domestic partner sold an asset that was only entitled to one of the partners, that partner would owe taxes instead of both partners.
Dissolving a Domestic Partnership
Just like many marriages, domestic partnerships can be ended in Texas. A domestic partnership is a legal arrangement between two individuals that carry similar legal rights and responsibilities of a marriage with some restrictions. Domestic partnerships generally end when: Each partner has equal rights and responsibilities for shared property and debts and they may agree on how to divide this property . While the Texas Family Code regulates the division of community property among spouses, there are no such regulations for domestic partnerships. Domestically partnered individuals are still subject to the legal regulation applicable to guardianship, child support, and medical malpractice tort reform laws. However, Texas law does not regulate the division of real property and personal property among domestic partners.
Texas Domestic Partnerships and Other States
When contrasting Texas domestic partnership laws with those of other states, one notable difference is that Texas does not offer a state domestic partnership registry. While cities like Austin have their own domestic partnership registries, their recognition of such partnerships remains fraught with legal hurdles as outlined in our previous post. Other states, in contrast, boast state-level domestic partnership registries that incentivize such arrangements and offer a clearer picture of the rights and benefits available to domestic partners. The starkest contrast is with California, where domestic partnerships are recognized statewide and enjoy many of the rights and benefits traditionally reserved for married couples. California law acknowledges registered partnerships as equivalent to marriages concerning rights and legal protections. In Illinois, the Illinois Religious Freedom Protection and Civil Union Act went into effect on June 1, 2011, allowing same-sex couples to enter civil unions. Legal protections, security and benefits offered to civil unions in Illinois include all those respecting marriage, including adoption rights. A civil union registered in another state is legally homologous with an Illinois civil union. However, registering for civil union or domestic partnership in Illinois does not automatically grant recognition to a prior union elsewhere, and dissolution of a civil union is subject to Illinois family law requirements. Other states like Colorado, Connecticut, Hawaii, Nevada and Vermont provide domestic partnership registrations that offer limited rights and benefits to registered partners but do not equate with the benefits of marriage. Different states define domestic partnerships differently, and eligibility requirements and benefits vary from one to the next. For instance, Colorado requires that registered domestic partners be over 18 years old, whereas Vermont and Connecticut require partners to be 16 years of age. Hawaii requires proof of cohabitation for at least a year, while Nevada requires only six months. Additionally, while some states grant domestic partnerships the power of attorney relating to health care decisions, others do not. Most states require proof of joint financial accounting along with proof of residency or cohabitation duration. As this brief overview has illustrated, the United States is a patchwork of state domestic partnership rules and regulations and, importantly, prospective partners should seek the advice of an experienced Texas family law attorney before entering this new relationship.
The Future of Domestic Partnerships in Texas
As the political and social landscape in Texas continues to evolve, the future of domestic partnerships in the state remains uncertain. With such changes, it isn’t all that surprising that there have been some discussions about altering the legal framework surrounding domestic partnerships.
House Bill 455, which sought to repeal the Domestic Partnership Registry in Texas, as well as end all benefits for new and existing domestic partners, was introduced on January 29, 2015. Under the bill, all applications for a domestic partnership would have been denied effective January 1, 2016 and those who were previously approved would have 30 days to cancel their contracts and receive a full refund of filing fees. While this proposal never made it past its first reading in the State Affairs Committee, the introduction of a bill to end an existing registry indicates the growing push to reduce the number of rights offered to domestic partners in the state.
A proposed Joint Resolution, HR-49, in January 2014 sought to amend the Texas Constitution’s definition of "marriage" to mean "’the union of one man and one woman, excluding any other domestic union." Similarly, a proposed amendment, HJR-56, sought "to encourage persons subject to the State’s jurisdiction to marry only a person of the opposite sex."
While these proposed amendments are aimed at people who might be eligible for civil unions or domestic partnerships under current Texas laws, the language of HR-49 and HJR-56 both seem to seek to eliminate the eligibility of same-sex couples to form unions that could be recognized as marriages . Similar to current legislative debates over same-sex marriage, it can be assumed that any such amendments would likely be subject to a heated debate followed by a vote in the state legislature before being sent to voters on a ballot.
While the future of domestic partnerships is still very unclear in Texas, there are some indications as to what we might expect to see in the next few years. In 2015, Texas passed a law that more clearly codified the limited rights offered to domestic partners in the state. As we mentioned earlier, the state legislature tried as recently as two years ago to eliminate the very existence of the Texas Domestic Partner Registry and the rights afforded to those linked through it. And finally, the recent Supreme Court ruling on Obergefell v. Hodges illegalizing same-sex marriage in Texas may shift the current political push in the state somewhat away from domestic partnership or civil union legislation.
Regardless of the outcome in this and other related areas, however, the future of domestic partnerships, and any other unions, will be decided by the next Texas legislature. Given the continued push for limited partner rights and benefits in Texas, domestic partnerships — whether extended to opposite-sex or same-sex couples — are unlikely to gain more rights than they have now, and may yet be eliminated altogether.
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