Domestic Partnerships in Texas: Entitlements and Obligations

What Is a Domestic Partnership in Texas?

Traditionally, a domestic partnership is defined as an unmarried couple living together in a committed relationship that exists exclusively for the purpose of creating a shared domestic life. In Texas, the state does not have any domestic partnership laws or statutes. Consequently, domestic partnerships in the state of Texas are formed at the county level. For example, Travis County does allow couples to file an Affidavit of Domestic Partnership with the county clerk. Other counties in Texas do not currently allow an Affidavit of Domestic Partnership to be filed.
Under the Texas Family Code, common law marriages and domestic partnerships are different. Under Texas Family Code Sec 2.401, a common law marriage only occurs if:
A marriage license is not required to create a common law marriage. Common law marriages can be effective without filing any paperwork. Some say there are legal benefits to common law marriages , such as property and inheritance rights. As mentioned above, domestic partnerships, if allowable by the county and filed with the appropriate forms in the county court clerk’s office, could give couples the same or similar legal benefits as a common law marriage under the Texas Family Code.
It should also be noted that Texas has an opinion from 2015 indicating that couples who enter into a domestic partnership don’t risk losing certain rights if the relationship ends. In that instance (Attorney General Opinion KP-0061), the Texas Attorney General declared that domestic partners are not entitled to any spousal rights in the event of a dissolution of a partnership under Texas Family Code Chapter 7.

Who Is Eligible for a Domestic Partnership?

Under Texas law, same-sex couples are eligible to enter into domestic partnerships with certain limitations. The Texas Family Code does not define "domestic partnership," as the term is more commonly used in other states. Texas does, however, have a health coverage mandate for employers that provide a health care benefit plan and health insurance benefits to employees that states that if an employer provides health benefits to a different sex domestic partner of an employee, it must also provide health benefits to a same sex domestic partner. In other words, insurance coverage will be provided for same sex partners under the same conditions as insurance for opposite sex partners.
Since there are no laws or recognized common law regarding domestic partnerships, there are no specific requirements that must be met for a valid domestic partnership in Texas. Certain things need to be communicated to county clerks when applying for a Certificate of Domestic Partnership (i.e. that you are over the age of 18 years old, either citizen or legal resident of the U.S., and that the domestic partner pages of the application have been properly executed.) Once the requirements set forth by the state are satisfied, a Texas county clerk should issue a certificate of domestic partnership. This will allow same sex partners the same rights as heterosexual spouses. As domestic partners, individuals are not legally bound to each other and are free to enter into contracts with the other person.

Domestic Partnerships: Pros and Cons

Texas does not provide as many advantages for domestic partners as it does for married couples. However, establishing a domestic partnership can be beneficial to partners in a few ways. In terms of finances, each partner can form a business as a limited liability company that will shield each of them from personal liability for the company’s debts. This means that if the company goes bankrupt, creditors cannot hold the owners personally liable for the company’s debts. Domestic partners may also be financially accountable for each other’s debts if they have co-signed on loans or credit cards. In addition, partners may be able to make health care or end-of-life decisions for each other if one partner is incapacitated. There are important limitations on a domestic relationship. The law provides no protection from: Unlike with marriage and divorce, domestic partners do not have the same rights to the property and assets that each brought into the relationship. Therefore, in the event of a break-up, the domestic partners would not have the same rights to property and assets as a married couple. Similarly, if either one of the partners dies, the survivor is not entitled to alimony and any property remaining will be distributed according to the deceased’s will, not through a statutory scheme like with a marriage. If the couple lives in a community property state, one partner is not entitled to half of the decedent’s community property in the absence of a will or a community property agreement. In terms of health-related benefits, there are no laws governing domestic partners and healthcare. It is incumbent on the partner to provide proof of eligibility and coverage so that their partner may utilize their health insurance. Finally, because spouses have greater protections under the law, courts may be less likely to enforce a domestic partnership agreement. At any time, a state court could hold that a domestic relationship agreement violates public policy and has no legal effect.

How Do Domestic Partnerships Get Registered in Texas?

The registration process for domestic partnerships in Texas varies from county to county, but generally requires the couple to appear together at the county clerk’s office. After obtaining an application form, domestic partners must fill it out and provide required documentation to complete the application. While Texas state law does not impose federal requirements for domestic partnership registration, each county may require specific forms of identification and proof of residence.
One requirement for registration is that at least one party be a resident of the county in which the couple registers. For straight couples seeking this designation to gain health or financial benefits, each county may have different financial or spousal qualifications. A domestic partnership generally requires the couple to sign a declaration that they are financially interdependent or a sworn notarized statement that they are financially interdependent. Domestic partnerships also require the couple to list any current spouse or registered partner if they are not certain that they are legally divorced from their spouses. Partners may need to provide proof their divorce or a certified copy of their spouse’s death certificate to confirm that they are no longer married to another person.
Along with the completed application and a signed preliminary declaration that nothing in the application is a false statement, the couple must pay the required fee. Filing fees change from year to year, so individuals should consult their local directory of filing fees for the latest information on the fees.
If a county clerk will not register a domestic partnership, an appeal can be made, generally to the district clerk, and a judge will review the petition. A refusal to register a domestic partnership can be appealed to the district court in the judicial district in which the county sits. The decision can be reviewed by a court of appeals, and ultimately, the Texas Supreme Court can rule on the matter.

Ending a Domestic Partnership

Termination of a Domestic Partnership in Texas can be a simple process or it can be complicated. Like the dissolution of a marriage, the end of your relationship may require a filing with the Court to divide property and order child support.
In Texas, the Disillusion of a Marriage is governed by the Texas Family Code which sets forth the applicable laws and procedures. Unfortunately, the same is not true for Domestic Partnerships. No state laws address Domestic Partnership issues and neither does the Texas Family Code. Those who choose to enter into Domestic Partnerships should be careful to set out the terms of their partnership in writing. The reason: there is no state law or procedure for Divorce or Enforceable contracts in Texas between Domestic Partners.
Parties to a Domestic Partnership should consider a comprehensive domestic partnership agreement (collaboratively drafted , reviewed and executed with counsel for both parties) to deal with protection and allocation of assets and property in the event of separation. A property settlement agreement between Domestic Partners is enforceable under contract principles. Parties should execute a Property Settlement Agreement, or equivalent contract, before they enter into the Domestic Partnership. The agreement needs to deal with the property issues, such as: ownership of property, allocation of property, debt allocation, maintenance, inheritance, dissolution, etc. An enforceable property settlement agreement (contract) will avoid costly and protracted litigation. Without an enforceable contract, the dissolution of a Domestic Partnership will follow the same rules and procedures set forth in the Texas Family Code for Disillusion of Marriage.

Domestic Partnerships vs. Common-Law Marriages vs. Marriage

In Texas, the law differentiates between domestic partnerships, common-law marriage and marriage by licensed and registered ministerial ceremony in significant ways. It does so by categories of partnership and marital relationship. For Status Initially granted Does the State Recognize It? Can the Status be created intentionally?
For common-law marriages and marriage by licensed and registered ministerial ceremony, Texas has civil laws that govern the rights and obligations of the parties to that marital relationship. There is no such governing law for domestic partnerships, so it is up to the parties to agree on their rights and responsibilities with respect to their partnership. Some of the differences between domestic partnerships and either common-law or formal marriage are: Another differences between domestic partnerships and formal marriage are: Additionally, domestic partnerships do not provide the same tax benefits as a traditional marriage. Health and life insurance premiums paid by employers for employees’ domestic partners cannot be excluded from the partner’s income as a "pre-tax," benefit. The federal government also does not recognize domestic partnerships for purposes of estate taxes or federal benefits. In Texas, the community property regime applies to both formal marriage and common-law marriage, and the both equalize the contribution of both partners to the marital estate – be it property, debts or obligations. Domestic partnerships do not provide equalization of property between partners or equalize their respective debts or obligations. Each party to a domestic partnership is financially responsible for his or her own debts. Debts incurred during the domestic partnership do not become liabilities of the other party. However, Texas law holds both partners equally liable for any injury to a third-party caused by the act of either partner during the course of the domestic partnership. This concept is based on the agency theory, which holds that each partner acts as the "agent" of the other partner.

Recent Legislation Impacting Domestic Partnerships

In May 2019, Texas joined a growing number of states offering domestic partnerships as an alternative to marriage. This comes after years of pressure from LGBT and other advocates. Texas is the 31st state to offer domestic partnerships. However, no LGBT or non-LGBT state will have a domestic-partners law that is as broad in scope as Texas.
SB 1259 (86th Texas Legislature), signed by Governor Greg Abbott, became effective immediately after being signed into law.
A person must be aged 18 or older to enter into a qualified relationship. Both parties must be legally domiciled in Texas. In addition, a party may not be in a marriage, civil union , or domestic partnership with anyone other than the other person in the qualified relationship.
A qualified relationship is one where both parties file a Declaration of Domestic Partnership. The declaration must be executed by both parties under oath before the appropriate office, which, presumably, means the clerk of the district court of the county. Also, the undertaking is available to either sex, unlike most other states. A declaration expires if: The declaration may also be terminated under several different circumstances, including by either party. Once the two parties execute a Declaration of Domestic Partnership, they will enjoy the same benefits as spouses in a marriage.