Domestic Partnerships & Civil Unions | Massachusetts

A “domestic partnership” is when two unmarried people (and sometimes their children) are legally recognized as a family. This status is sometimes used to give benefits, like health insurance, through an employer. Under Massachusetts law (MGL c. 43B, § 13), local governments and municipalities adopt their own specific ordinances authorizing and licensing domestic partnerships. While not all towns have them, individuals should check with their cities’ specific rules governing domestic partnerships. 

Yes. The Massachusetts Supreme Judicial Court has ruled that Massachusetts courts must give the same respect to civil unions and registered domestic partnerships as marriages, with rights and obligations functionally identical to marriage. (Hunter v. Rose, 463 Mass. 488 (2012); Elia-Warnken v. Elia, 463 Mass. 29 (2012)).

No. While several cities and towns have done so in the past, a court ruling in 1999 found that Boston did not have the power to expand the reach of the state insurance laws by including domestic partners in the group health system (Connors v. Boston, 430 Mass. 31 (1999)). However, some cities and towns have continued to provide coverage for domestic partners. For example, Amherst has continued its domestic partner program by buying individual health insurance policies for the partners of Amherst employees who previously had group health coverage through the town.

Private employers can choose to offer benefits to domestic partners. These can include:  

• Health insurance  

• Medical or bereavement leave  

• Retirement or pension benefits  

• Relocation support  

• Use of company facilities  

However, federal tax laws sometimes treat domestic partner benefits differently from spousal benefits. For example, employees must pay federal income tax on a domestic partner’s health insurance benefits, but not on a spouse’s health insurance benefits. See Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996). Also, married employees need their spouse’s permission to name someone else as a pension beneficiary, but unmarried employees do not need their domestic partner’s permission to name someone else as a pension beneficiary.   

There are various legal documents that can protect a couple’s relationship, regardless of whether the couple has no formal legal relationship or is already in a marriage. 

• Relationship Agreement or Contract: A couple has the option of drafting a written cohabitation agreement, outlining their respective rights with regards to property, finances, and other aspects of their relationship. The Massachusetts Supreme Judicial Court has held that these agreements are generally enforceable and will be respected according to ordinary rules of contract law. Although such agreements may concern the custody and support of children, a court will not uphold any agreement it finds to contravene the child’s best interests. Finally, couples should note that if they eventually marry, a previous relationship agreement will likely no longer be valid, and any post-marital agreement will be enforceable only to the extent that it is fair and equitable to both parties. 

• Power of Attorney: A couple can choose to grant each other the durable power of attorney, allowing one partner to make financial decisions on the other’s behalf in the event of incapacity or disability. The requirements are minimal: any competent person may appoint another person as their “attorney-in-fact”. If no such appointment is made, a family member will be empowered to make decisions for the incapacitated individual. 

If one partner is incapacitated or disabled, the other partner may petition the court to be appointed as their guardian in order to make decisions on their behalf. Unless good cause dictates otherwise, a court should grant guardianship to whoever has durable power of attorney over the incapacitated person. Thus, couples are encouraged to grant each other durable power of attorney if they believe guardianship will one day be necessary. It is important to note that an individual’s choice can only be rejected for good cause—a court should not substitute its own judgment just because a family member objects to the appointment. 

• Health Care Proxy: A couple can also choose to appoint each other as health care proxies, allowing them to make medical decisions on one another’s behalf in the event of an emergency. Absent a health care proxy appointment, medical care providers look to next-of-kin to make health care decisions for an incapacitated individual. Thus, if an unmarried couple wants to make decisions for one another, they need a health care proxy. Health care proxies can be revoked at any time, either by creating a new health care proxy or by a clear expression of revocation. People often give a copy of the health care proxy to their doctors, and sometimes to family members. You can find a sample Health Care Proxy form here: Massachusetts Medical Society: Health Care Proxy Information and Forms. 

• Will: Without a will, a deceased unmarried person’s property passes to: (1) their children; (2) their family; (3) if next-of-kin cannot be located, to the state. If a person wishes to provide for others, such as their partner, a will is essential. Even if a person has few possessions, they can name in the will who will administer their estate. If a person has children, they can also nominate the future guardian of the child in a will. 

• Funeral Planning Documents: Upon death, a person’s body is given to their next-of-kin. This can mean that a person’s own partner has no right to remove the body or make plans for a final resting place. But if a person leaves explicit written directions giving another person (such as their partner or a friend) control over the funeral and burial arrangements, any confusion can be avoided. Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters, as well as to family members. 

• Living Will: Within a health care proxy, language may be inserted stating what the individual wishes regarding termination of life support, preferences for types of medical care, or limits on the agent’s authority. 
• Temporary Agent or Guardianship: Parents, particularly those with life-threatening illnesses, may either appoint a temporary agent for a period not exceeding 60 days, or appoint a guardian whose appointment takes effect when the parent dies or is unable to care for the child. Within 30 days after the appointment of a guardian, the guardian must petition the Probate and Family Court for confirmation of the appointment. The parent has the right to revoke the powers of the temporary agent or guardian at any point. 

GLAD Law recommends working with a lawyer. 

While you can find forms online, they may not meet your specific needs. A lawyer can write documents that are better suited to your goals and help avoid legal problems. For example, a lawyer can write a will that’s harder for unhappy family members to challenge. GLAD Law Answers can help you find lawyers who are part of its Lawyer Referral Service.  

If the couple signed a relationship or cohabitation agreement, the terms of that agreement will guide how property and finances are divided. If they didn’t, they may need to go through a long and expensive legal process to settle things.  

IMPORTANT: If you want to change who you’ve named in any of these documents (like a health care agent, funeral planner, or beneficiary), you must revoke the old document and make a new one. Tell everyone who had the old version that it’s no longer valid.  

For more information on Massachusetts’s rules related to domestic partnerships, visit Massachusetts law about unmarried couples and domestic partnerships.