The Precarious Status of Domestic Partnerships for the Elderly in a Post-Obergefell World

Abstract

The Supreme Court’s landmark decision in Obergefell v. Hodges gave same-sex couples the right to marry in all fifty states, correcting the injustice that non-marital legal statuses like domestic partnerships were intended to remedy. Now that same-sex couples can marry nationwide, the federal government and states that created domestic partnerships are considering how to treat couples in those statuses — specifically, whether to treat domestic partners like spouses and whether to continue to offer non-marital legal statuses at all. Three states face a particularly thorny question post-Obergefell: what should be done with domestic partnerships made available to elderly same-sex and straight couples at a time when same-sex couples could not marry. This Article examines why California, New Jersey, and Washington opened domestic partnerships to elderly couples. Although domestic partnerships in these states primarily responded to the needs of gay couples who could not marry, legislators also saw the elderly as sympathetic: unfairly prevented from remarrying for fear of losing benefits from a previous marriage. This Article drills down on three specific obligations and benefits tied to marriage — receipt of alimony, Social Security spousal benefits, and duties to support a partner who needs long-term care under the Medicaid program — and shows that entering a domestic partnership rather than marrying does not benefit all elderly couples; rather, the value of avoiding marriage varies by wealth and benefit. The Article concludes that as pressure mounts to fold domestic partners into marriage after Obergefell, legislators should examine whether domestic partnerships have become a province of the wealthy, undercutting the impetus for maintaining a second, collateral status.