Understanding Domestic Partnerships in Georgia: The Laws and Consequences

Ways that Georgia Views Domestic Partnerships

Georgia does not legally recognize domestic partnerships. In 1996, the Georgia Legislature amended the laws to preclude the "granting or recognizing of legal status to unmarried individuals who are in relationships of intimate interdependence". Georgia Statute § 19-3-3.6. Since that time, Georgia has not granted any right or benefit to domestic partnerships.
In 2014, a judge in the United States District Court for the Northern District of Georgia declared unconstitutional the Federal Defense of Marriage Act’s (DOMA) definition of marriage as "only a legal union between one man and one woman" . Windsor v. United States, NO. 14-CV-135 (N.D. Ga. June 24, 2014). More cooperation for the ability to attain federal benefits for same sex marriages has happened at the level of the federal government, but this does not change Georgia’s refusal of legal recognition of domestic partnerships. Same sex couples may enter into an in house cohabitation or domestic partnership agreement which outlines their intentions but does not give the full benefit of state recognition or rights associated with a marriage.

Non-Domestic Partnership Options in Georgia

While domestic partnership has not been recognized in Georgia, couples have several alternatives to seek out similar legal rights. Georgia is one of a number of states that is actively on the road towards recognizing same-sex marriage. However, until there is local authority allowing such an institution, couples should look to enter into contracts with one another to lay out their rights and responsibilities in areas including (but not limited to) negotiation of parenting arrangements, estate planning, property passing and health care power of attorney documents. One important legal instrument that holds weight in Georgia is a prenuptial agreement, which unlike a marriage would not require the couple to have a religious or civil ceremony. This agreement serves to protect property or assets after a relationship ends, and establish the parties’ rights and obligations with respect to property. A cohabitation agreement may also be valid if it is established prior to or during a period of cohabitation, in which case the intent should be to define the rights and obligations of each party with respect to property acquired during the term of the cohabitation. These agreements must be in writing, signed with voluntary consent, with full disclosure of assets and liabilities of each party, must not violate public policy and must be in writing. When a couple decides to marry, there are obligations that both parties must accept upon entering into that institution. For example, an increase in both parties income leads to a corresponding increase in the amount each is required to contribute to monthly expenditures. If one party needs spousal support for a period of time during the other party’s earning period, the first party is required to pay it in accordance with Georgia law. Moreover, the marital property is subject to distribution in the event that the relationship dissolves. Furthermore, married couples are entitled to file an income tax return jointly, medical benefits through one another’s employer, and receive other benefits such as inheritance and property rights without the costs of transferring property. Similarly, a civil union is a legal relationship other than marriage that provides for health care decisions, inheritance and property rights. Unlike a marriage a civil union does not bestow legal naming rights and relationships are not recognized other than by the parties. The above options are imperfect and should be viewed carefully before choosing to enter into one.

Domestic Partnership Rights

Potential rights and benefits of domestic partnerships include the ability to authorize medical treatment in emergencies, making certain end-of-life decisions, the right to visit one’s domestic partner when he or she is hospitalized, the right to inherit those property items belonging to one’s domestic partner that pass outside of his or her estate planning documents (wills & trusts), entitlement to injury compensation damages that would have otherwise gone to the decedent’s spouse, the right to income and worker’s compensation proceeds that would otherwise go to the decedent’s spouse, the right to rent the decedent’s home upon the decedent’s death, exemption from estate taxes for property passing between domestic partners upon the death of the first partner, ability to file health insurance claims as a "dependent," and the ability to claim domestic partner health coverage under a partner’s health care plan.
Domestic partnerships also allow individuals to be viewed as a family unit for the purposes of government benefits and eligibility. For example, they may be allowed to file for governmental programs together like food stamps, low-income housing, and unemployment. Other examples include: elderly couples eligible for a Medicaid waiver would no longer have to spend down assets solely to qualify for the program; residents in facilities would be able to choose their life partner or domestic partner as their authorized responsible party for medical decisions; seniors could elect to include their same-sex or unmarried partner in contributory retirement programs; and unmarried couples would be eligible to receive Medicare benefits as a family. Further, domestic partnerships would free some same-sex couples from inflexible and expensive visitation rules and allow exclusion of one partner’s income and resources from assessment of the other partner’s eligibility for "need-based" government programs.
Couples in domestic partnerships also have legal protections and rights as parents such as the ability to adopt a partner’s child or adopt jointly; the presumption that non-biological parents are the parents of each child of either of the couple (rather than those of just one of them) if the child continuously resides in the home of the couple and is treated as their child both by the couple and the community; and the right to establish surrogacy agreements as enforceable contracts. Similarly, domestic partners have the same rights as married couples to financially plan for their desired after death asset distribution.
Furthermore, there are certain federal benefits and rights such as immigration rights or other benefits that have been granted based on the fact that the couple has signed a formal written domestic partnership agreement that has given legal value to their relationship.

Obstacles Facing Domestic Partners in Georgia

Many of the same issues that are presented to same-sex couples are presented to domestic partners – even though domestic partnerships are not recognized in Georgia. Many of these issues are administrative in nature, but they can have a broad impact if they are not addressed specifically. Examples include a domestic partner being unable to receive health insurance benefits from a partner’s employer, partner’s being unable to receive benefits from the Social Security Administration upon the death of a partner and estate tax implications.
The following are just 3 examples of the hurdles that domestic partners face in Georgia:

1) Health Insurance – Currently, even though federal agencies like the Equal Employment Opportunity Commission ("EEOC") and the US Department of Labor ("DOL") recognize same-sex spouses and call for equal treatment in matters of employment provided to married couples, the EEOC and DOL both defer to state law as to the applicability of state anti-discrimination laws. Therefore , an employer’s refusal to provide same-sex spouses the same health benefits as heterosexual spouses could put that employer in violation of federal law.

However, Georgia does not recognize domestic partnerships, so its laws on this issue would not protect same-sex couples from discrimination. An employer could legally deny provisions of health benefits to a same-sex spouse.

2) Social Security – In order for a Social Security domestic partner to draw family-related Social Security benefits when his/her partner dies, it is important that the Social Security Administration first recognize active domestic partners. Currently, the Social Security Administration does not recognize any domestic partnership of any type.
3) Estate Taxes – The state of Georgia does not allow same-sex couples to jointly own property or move property between partners without transferring title and paying gift taxes. This could cause substantial financial hardship for those who are unable to afford to pay gift taxes in the event a partner transfers property ownership.

The Future of Domestic Partnerships in Georgia

As attitudes toward LGBTQ rights continue to evolve, Georgia may eventually be moved to extend legal recognition and protections to domestic partnerships. As more states and municipalities enact laws granting legal recognition to same-sex couples as domestic partners or in other ways extending to those couples the same rights as married couples, Georgia may inevitably enter the conversation. The question is not if, but when. This is especially true after the U.S. Supreme Court’s 5-4 ruling in Obergefell v. Hodges, 576 U.S. ___ (2015), which extended the right to marry to same-sex couples nationwide and effectively overturned Georgia’s ban on same-sex marriage.
Georgia is home to many LGBT residents and organizations advocating on their behalf . As Georgia’s LGBTQ population continues to grow, with projections predicting an increase of around 12 percent by 2025, and as advocacy groups work to increase public support for same-sex civil unions and gay marriage, it is possible that another court challenge to Georgia’s law that prohibits same-sex marriage will ultimately be lodged in an effort to guarantee marriage licenses for same-sex couples. If this occurs, even though the U.S. Supreme Court’s decision in Obergefell, supra, made it constitutionally untenable for any state to prohibit same-sex marriage, Georgia may yet come to the forefront of the discussion surrounding legal recognition of same-sex relationships. The question then becomes whether the state will take the opportunity to join a host of other states in recognizing domestic partnerships as legally acceptable alternatives to marriage.