Current Status of Domestic Partnerships in Ohio
Domestic partnerships are not formally recognized in Ohio law, which means that statewide there is no formal way to define or provide structure for these personal relationships. However, in June of 2011 the city of Columbus passed an ordinance offering domestic partnership benefits to employees of the city and participating businesses. The ordinance is applicable to businesses that, after a review of their business plan or financial statements, exhibit sufficient financial resources or sustainability. As a result of the ordinance, employees of the city of Columbus and select private employers are eligible for domestic partnership health benefits.
In addition to Columbus, Cuyahoga County has also adopted a domestic partner registry, making the city of Cleveland the first major city in Ohio to adopt civil unions . The county ordinance provides domestic partners with many of the same legal protections granted to married couples.
While Ohio does not recognize common law marriages—meaning that a couple cannot claim they are married simply because they are very committed to one another and live together—Ohio domestic partnerships currently exist as a matter of private contract, making them enforceable under contract law. Domestic partnerships can be created using private contracts and agreements. Domestic partners can also engage in estate planning activities together, such as wills, trusts, and health care directives. These estate plan documents are helpful should one partner need medical attention, as the other may otherwise have no legal relationship or standing to make decisions.
Domestic Partnerships versus Marriage in Ohio
Since the passage of Ohio DOMA, there are essentially two forms of legally recognized intimate relationships available to parties in Ohio: marriage and domestic partnership. Both marriages and domestic partnerships offer legal protections, rights, benefits, and responsibilities for the parties involved. However, certain differences between these relationships exist.
From a legal perspective, domestic partners do not enjoy all of the same legal rights and benefits in Ohio as married couples, although both relationships are treated similarly in many respects. For example, domestic partnerships do not confer the right to adopt children or grant spousal rights in bankruptcy court. Additionally, domestic partners are excluded from the rights and benefits otherwise available as a result of a marriage, such as health benefits provided by employer group health plans, survivor benefits under pension and retirement plans, the ability to take leave under the Family Medical Leave Act (FMLA), spousal medical decision-making rights in the case of emergency, and various other federal grant and credit benefits. Domestic partnerships also do not provide common law marriage rights.
Marriage is a legally recognized contract between two individuals. The parties typically obtain a marriage license and designate the terms of their rights and duties through negotiation and agreement before the contract is executed at the marriage ceremony. The marriage contract carries certain legal duties and obligations for spouses, such as support duties and loss of privacy rights to some extent. A judge may issue a dissolution of the marriage contract, which terminates the contract and each party’s rights and duties under the law. Although courts have broad discretion in fashioning a dissolution order, the dissolution of the contract does not restore the parties to the situation they would have been in had they never entered into a marriage contract.
Like marriage, domestic partnerships are licensed as contracts. Domestic partnerships are entered into voluntarily and by application of the parties. A domestic partnership is similar to the marriage contract in that it is what parties to the domestic contract agree to by the terms of their agreement. However, the law provides that a domestic partnership will be executed even if the parties to the domestic contract do not understand its terms or their legal rights and obligations. Although domestic partners can negotiate the terms of their domestic contract, the law provides that the contract will be strictly enforced as written, and courts will not dissolve the domestic contract for reasons of equity. In this respect, a domestic partnership bears more similarities to a control contract than a marriage contract.
While domestic partners do not have the right to adopt, they do have the ability to jointly adopt a child or petition for adoption of a stepchild where spouses are authorized to adopt under the law. Because domestic partners are not married legal spouses, they do not share in the right to receive spousal health benefits under group health care plans or health benefits under public programs. Domestic partners are eligible for survivor benefits if they can prove their domestic partnership existed long enough to establish an indefinite relationship and have no legal spouse. Federal laws such as FMLA to the extent they cover spousal relationships, do not apply to domestic partners.
Both marriages and domestic partnerships are more highly respected by the law than other types of non-contractual intimate relationships. Courts will enforce the provisions of a marriage contract or a domestic partnership contract according to its terms, so long as the terms are consistent with the law. Courts will not regulate the relationships of either domestic partners or spouses once the relationship is established.
Historical Overview of Domestic Partnerships in Ohio
In Ohio, the origins of domestic partnerships are traced back to the late 1990s. In 1999, the Human Rights Campaign (HRC) released its first list of leading U.S. companies with innovative policies and practices regarding gay, lesbian, bisexual, and transgender (LGBT) employees. Twelve years later, ELGL published its annual Bans, Rulings, and Laws Master List that showed there were already more than fifty U.S. cities that had previously enacted some form of domestic partnership recognition.
The first legislation directed towards domestic partnerships in Ohio came courtesy of the governor’s office of former Ohio Governor Richard Celeste in 1991. In July 2019, former Ohio Governor John Kasich permitted a city ordinance concerning domestic partnerships to remain valid after the Ohio General Assembly failed to override his veto of the ordinance.
In early 2000, the Ohio House voted on a bill that would have established Ohio’s first statewide domestic partnership registry. However, that the proposed bill was subsequently never voted on by the Ohio Senate.
In 2004, the Ohio House was poised to consider legislation for a statewide domestic partner registry. This initially seemed promising as it overwhelmingly passed in committee but faced difficulty passing in the full chamber. Thus, it was never voted on by either chamber.
In 2007, Ohio Senator Dale Miller proposed legislation that would have created a domestic partnership registry for all qualified Ohioans. However, the overall lack of legislative support led to the legislation’s termination.
In 2016, LGBT rights groups sought support from lawmakers for legislation that would have permitted gay and lesbian couples to file taxes jointly and get access to numerous other benefits accompanied with marriage. However, the span of the General Assembly’s session led to the legislation failing to pass.
Even so, more than several Ohio cities and counties began allowing domestic partners to register and receive numerous benefits. These municipalities included: Despite these cities’ and/or counties’ progressive positions, the state of Ohio still maintained different statutes thwarting local laws. The current validity of these municipal domestic partnership ordinances came to fruition in 2013 when the Ohio Attorney General opined that cities or counties could not enact domestic partnership ordinances.
In July 2019, the Ohio Supreme Court sided in with a lower court in ruling against the City of Dayton’s ordinance that had been passed in 2012. The court explained that the ordinance "conflicts with Ohio law" observing that the "General Assembly has rejected the approval of gay marriage and made clear that domestic-partner benefits are not permitted under Ohio law." Notably, the Ohio Attorney General advised Dayton against appealing the ruling.
Legal Rights for Domestic Partners in Ohio
Domestic partnership in Ohio provides no benefits to partners through any legal authority, whether state or federal. In order to provide benefits to domestic partners, it is recommended that they have agreement that the domestic partner will be covered whether by health insurance, life insurance and so forth. Even then, if the benefit provider is a federal agency, the benefit may not be provided through a domestic partnership.
Without a formal partnership, there are no rights for property rights, medical rights, health insurance, tax or retirement. For example, if one partner dies in Ohio, there is no right to the estate through a domestic partnership. The only way therefore to secure such rights is through an estate plan which includes a will, and perhaps a trust.
Given the lack of legal rights for domestic partners, the contracts offered here benefit those who wish to have a much more serious commitment than a "boyfriend or girlfriend" status. If you want someone to have power of attorney, be covered by your health insurance, have survivor or spousal rights under federal law, then acknowledge that your love is something that the law should recognize. If you don’t, then simply choose not to have such a contract.
Alternative Recognition of Relationships in Ohio
Alternate forms of relationship recognition are available in Ohio; however, they appear to have limited benefits. For example, certain health insurance plans offered by both public and private employers may provide benefits to qualifying same-sex and opposite sex unmarried couples as part of the employee’s employment compensation package. Likewise, many private colleges and universities in Ohio require a signed Affidavit of Healthy, Stable Relationship from its students, which may be used for certain applied benefits such as housing and meal plan discounts.
Cohabitation agreements are a contract recognized and enforceable in Ohio. A cohabitation agreement may be used by two people who are not legally married but wish to have a legally enforceable contract between them that may govern such things as property ownership and distribution upon termination of the relationship or death. However , even if the cohabitation agreement is valid and enforceable in a court, it may not be subject to the same financial and legal tax treatments under Ohio law as married couples. Cohabitation agreements are often codified as prenuptial agreements and may be validated by the court as such. In doing so, they are subject to the same rules and constraints under Ohio law as premarital agreements. Cohabitation agreements entered into by same-sex couples in Ohio are often confused with domestic partnerships, although the two concepts are not synonymous.
Ohio remains one of only three states that do not recognize civil unions.
Local Ordinances and Policies
Local governments in Ohio play a significant role in determining whether or not domestic partnerships are recognized at a municipal or county level. There are a number of cities and counties throughout the state that have enacted ordinances or established registries that grant domestic partners certain rights and benefits.
For instance, the City of Columbus officially recognizes domestic partnerships and bestows them with a variety of benefits, including medical coverage, family care leave and bereavement leave, treatment as a spouse for some purposes and spousal equalization in cases of court-ordered child support. Additionally, it allows domestic partners to make medical decisions on behalf of their partner when they are hospitalized, has "domestic partner" listed as a basis for permissible injury to companionship action and determines that domestic partners will be treated the same as spouses under workers compensation law.
The City of Dayton and the City of Akron have also passed legislation granting similar benefits to domestic partners of city employees.
At the state level, Ohio does not recognize domestic partnerships. However, at the state or local level, employers are free to extend benefits to domestic partners that they are not required to provide by state or federal law.
Consequences of the Lack of Recognition for Ohio Residents
In addition to the social implications, the legal impact on Ohio residents is quite profound and has deep ramifications for those who have been in domestic partnerships. The majority of domestic partnerships entered into in Ohio were based upon a misunderstanding of the legal argument at play. Many believed that Ohio would recognize such relationships. Even if such was the case, the limited substitutive nature of both domestic partnerships and civil unions diminish their value. For example, in the absence of a federal tax structure allowing certification of substitute hierarchy, a "spouse" is still primarily obligated for all taxes, both income and inheritance, and while the "partner" would be liable only for her pro-rata share of taxes otherwise attributable solely to him, in many cases he would still be liable for the full amount of taxation. That is, if both were residents of Ohio, a joint return could not be filed, and they would be "banned" from filing separately at least for years following the 2018 adoption of federal tax reform.
The professional and personal impact of this limited recognition has remained severe. Many businesses do not provide equal opportunity and equal treatment, and while some families have procured the services of legal counsel for the dissolution of their relationships, most who have been previously recognized as legal partners or spouses have been left without recourse. This has resulted in several couples being unable to use domestic violence protections, no access to dependent health care benefits, no spousal visas or immigration petitions available, and unrecognized child-support obligations. However, perhaps larger than these consequences is the emotional toll taken on the individuals and families directly affected by the dissolution of a long-term relationship and the nullification of their legal status.
While in theory, many same sex couples are now able to pursue spousal-based legal recourse, such has been for many years provided by Ohio’s Domestic Violence Act, Chapter 3113.31 of the Ohio Revised Code. However, many of these spouses were not allowed to use their spousal bank account or savings to secure legal counsel to obtain spousal or child support or to pursue shared parenting and visitation. Further some business limitations arose under the tax code. Both Ohio and Federal law recognize marriages in other countries for their legal effect, and many contracts provide for enforcement in Ohio. However, such legal alliances are not so recognized in Ohio, and some of these marriages have been found to violate Ohio’s bigamy statute.
The result has been a proliferation of steps taken by same-sex couples to protect their interests. Many formalize their relationships with private contracts relating to business ownership and personal property. Others effect more traditional protections via trusts and wills. Unfortunately, access to these planning arrangements are necessarily limited, as not all can afford the services of an attorney. Spousal relationships in Ohio are often subject to the jurisdiction of juvenile courts, and thus access to trial courts, magistrates and appellate review are often less accessible because of financial limitations.
In the aftermath of Obergefell, most counties in Ohio have begun to issue new birth certificates listing only the birth mother’s name (obviously in cases of sperm donations, or where the couple was unable to conceive). However, frankly for administrative convenience, the birth mother’s name is often simultaneously used on the application for adoption, even where no adoption is intended. Additionally there are increasing limits on readoption for native-born children in Ohio. Delays of up to eight months have affected not only the due process rights of the biological father, but the ability of the birth mother to seek further reproductive treatments. As such, many of these children end up in the custody of non-birth parents.
Many of these issues have yet to be resolved. Furthermore, Ohio’s courts, constables and clerks provide no training in how best to address the needs of the expanding LGBT constituency.
Future Trends: Domestic Partnerships in Ohio
Currently, the domestic partnership in Ohio remains a legal status that is not widely understood or supported. While this status is not recognized at the state level in Ohio, it is being recognized in a growing number of areas. More cities are currently recognizing domestic partnerships and employer-sponsored benefit plans are also giving more weight to these agreements.
In looking at the future of domestic partnerships in Ohio, we have to consider current political and social trends to see if the growing recognition of this legal status will continue in our state. While many would agree that some sort of legal protection is necessary for same-sex couples , there are still many who consider the legal status of domestic partnership too liberal and may wish to see its further inclusion in the law.
Most people agree that change in the recognition of domestic partnerships at the state and national level needs to be based on the decisions of the people and the state and federal governments. As people continue to grow more supportive of domestic partnerships, this is likely to eventually lead to more widespread legal recognition.