2009 BILL
AN ACT ...; relating to: the budget.
Analysis by the Legislative Reference Bureau
Establishment of domestic partnership
This bill provides requirements for forming a legal relationship of domestic partnership. Under the bill, a domestic partnership may be formed by two individuals who are at least 18 years old and who are not married or in another domestic partnership. The individuals must share a common residence, they may not be nearer of kin than second cousins, and they must be members of the same sex.
To form a domestic partnership, the individuals apply for a declaration of domestic partnership to the county clerk of the county in which at least one of them has resided for at least 30 days. The application must be subscribed to by the parties, who must submit proof of identification to the county clerk. The application must contain the social security numbers of the parties, as well as any other information that the Department of Health Services (DHS) directs. Each applicant must exhibit to the clerk a certified copy of his or her birth certificate, as well as any other document affecting the domestic partnership status, such as a death certificate or a certificate of termination of domestic partnership. If the parties fulfill all of the requirements for forming a domestic partnership, the clerk issues to the parties a declaration of domestic partnership. The parties must complete the declaration, sign it in front of a notary, and submit it to the register of deeds of the county in which they reside. After recording the declaration, the register of deeds must send the original to the state registrar of vital statistics.
To terminate a domestic partnership, at least one of the domestic partners must file with the county clerk a notice of termination of domestic partnership, which must be signed by one or both of the domestic partners and notarized. If only one of the domestic partners signs the notice, he or she must also file an affidavit stating either of the following: 1) that he or she has served the other domestic partner with notice that he or she is going to file a notice of termination of domestic partnership; or 2) that he or she has been unable to locate the other domestic partner and has published a notice in a newspaper of general circulation in the county in which the latest common residence of the domestic partners is located. Upon receipt of a notice of termination, or a notice and an affidavit, the clerk issues a certificate of termination of domestic partnership to the domestic partner filing the notice of termination of domestic partnership. The certificate of termination of domestic partnership is recorded in the office of the register of deeds, and the register of deeds must send the original to the state registrar of vital statistics. The termination of the domestic partnership is effective 90 days after the certificate of termination of domestic partnership is recorded in the office of the register of deeds. However, if one or both domestic partners enters into a marriage that is valid in the state, the domestic partnership is automatically terminated on the date of the marriage.
Court and evidentiary matters
Under current law, a court reviewing a settlement or monetary judgment for the plaintiff in a wrongful death action may set aside an amount of up to 50 percent of the net settlement or judgment, after deducting collection costs, for the support of the decedent's surviving spouse or minor children. Current law permits a surviving spouse or other relatives allowed to bring a wrongful death action to satisfy and discharge the claims of the estate in settling the wrongful death claims of the surviving spouse or other relative. This bill allows the decedent's surviving domestic partner to file an action for wrongful death, to petition the court to set aside amounts of up to 50 percent of the net settlement or judgment of the wrongful death claims for the support of the domestic partner and allows the domestic partner to discharge the claims of the estate in settling the domestic partner's wrongful death claims.
Under current law, a person has the right to evoke the spousal privilege and prevent the person's current or former spouse from testifying about private communications between the spouses or former spouses, subject to certain exclusions. This bill allows a person to prevent the person's current or former domestic partners from testifying about private communications between the domestic partners or former domestic partners, subject to the same exclusions.
Current law requires that a victim of a crime or his or her family members be notified when a person who committed a crime against the victim is released from prison or a mental institution, applies or qualifies for release to probation or extended supervision from prison or a mental institution, applies for a pardon, or escapes from a prison. This bill includes a domestic partner as a member of a victim's family who is entitled to the same notice given to family members under current law.
Current law also allows the Department of Justice to grant compensation to the spouse of a person who is killed or injured while trying to prevent a crime, trying to detain a criminal, or trying to assist a crime victim or a law enforcement officer. This bill allows a domestic partner to receive the same compensation that a spouse receives under current law.
Employee benefits
Under current worker's compensation law, when death results from an injury sustained by an employee while performing services growing out of and incidental to employment, the employee's dependents, including a spouse who is living with the employee at the time of death, are entitled to a death benefit. This bill extends death benefits under the worker's compensation law to a domestic partner of a deceased employee who is living with the deceased employee at the time of death.
Family leave. Under current law, an employee of an employer employing 50 or more individuals on a permanent basis may take up to six weeks of family leave in a 12-month period to care for a child, spouse, or parent of the employee, or the parent of the spouse of the employee, who has a serious health condition. This bill permits such an employee to take family leave to care for a domestic partner, or the parent of a domestic partner, who has a serious health condition.
Wage and cash bond payments. Under current law, if an employee to whom wages are due dies, the employer must, upon demand, pay the wages to the spouse, children, or other dependent living with the employee at the time of death. The employer may, before an application is filed for the administration of the deceased employee's estate, make that payment to the spouse, children, parents, or siblings of the deceased employee, giving preference in that order listed.
Similarly, if an employee who is required to furnish a cash bond dies, the employer may, before an application is filed for the administration of the deceased employee's estate, withdraw the cash bond and turn it over to the spouse, children, parents, or siblings of the deceased employee, giving preference in that order listed.
This bill requires an employer of a deceased employee who was required to furnish a cash bond or to whom wages are due to turn over the cash bond or pay the wages to the domestic partner of the deceased employee.
Public employee benefits. The bill provides that domestic partners must be treated in the same manner as spouses with respect to all pension benefits provided to public employees who are covered under the Wisconsin Retirement System and all other benefits provided to state employees.
Insurance matters
Under a program in current law, DHS provides subsidies to eligible persons to pay premiums for health insurance provided through the person's employer if the person's employment has been terminated or his or her hours have been reduced or he or she is on medical leave because of an illness or condition related to a human immunodeficiency virus (HIV) infection. DHS may provide the subsidies even if the insurance covers the person's spouse and dependants. The bill provides that DHS may also provide the subsidies if the insurance covers the person's domestic partner.
Under current law, a local governmental unit (which includes a city, village, town, county, school district, sewerage district, and drainage district) may provide health and life insurance for employees, officers, and their spouses and dependent children. Under this bill, such coverage may also be provided for an employee's and officer's domestic partner and dependent children.
Health and mental health care and after-death decision making
Currently, all patient health care records are confidential and, with numerous exceptions, may be released only to persons with the written, informed consent of the patient or of a person authorized by the patient. A "person authorized by the patient" is, for an adult, the patient's guardian, a person authorized in writing by the patient, or the agent under the patient's power of attorney for health care. For a deceased patient, the patient's personal representative or spouse is the person authorized by the patient. If no spouse survives a decedent, an adult member of the deceased patient's immediate family is the person authorized by the patient. The authorization permits inspection and receipt of copies of the patient's health care records. The bill authorizes a domestic partner of a deceased patient to be the person authorized by the patient for purposes of release of the patient's health care records.
Under current law, an individual's treatment records (records of services for mental illness, developmental disability, alcoholism, or drug dependence) generally are confidential and privileged to the individual, but may be released without informed written consent under numerous circumstances. Under one of the circumstances, a spouse, parent, adult child, or sibling who is directly involved in providing care to or monitoring the treatment of an individual may, upon request, receive certain limited information from the individual's mental illness or developmental disability treatment records. Under another circumstance, the parent, child, sibling, or spouse of an individual who is a patient at a public or private treatment hospital, a law enforcement officer, or a mental health professional may receive certain information about the location of the individual, unless the individual has requested that the information be withheld or there is reasonable cause to believe that the information would result in danger to the individual. The bill authorizes the domestic partner of an individual who is receiving treatment for mental illness or developmental disability to receive information from the treated individual's treatment records and about the individual's location.
Currently, certain persons, in a specified order of priority, may consent to admission directly to a hospice or directly from a hospital to a nursing home or community-based residential facility (C-BRF) of an incapacitated individual who does not have a valid power of attorney for health care and has not been adjudicated incompetent. The priority for these persons in relationship to the incapacitated individual is spouse; adult child; parent; adult sibling; grandparent or adult grandchild (for admission to a nursing home or C-BRF); and adult close friend. Consent for admission may not be made if the individual, or certain persons within the order of priority, objects. The bill classifies an incapacitated individual's domestic partner in the same priority as a spouse for the purpose of admitting the individual to a nursing home, C-BRF, or hospice.
Under current law, if both spouses are residents of the same nursing home or C-BRF, they may be permitted to share a room, unless medically contraindicated. The bill permits the sharing of a room by both domestic partners if both are residents of the same nursing home or C-BRF.
The bill requires a hospital, nursing home, C-BRF, certified or licensed adult family home, residential care apartment complex, or hospice that has a policy on visiting patients to extend the same right of visitation to a patient's domestic partner as is accorded the spouse of a patient under the policy.
Currently, a health care power of attorney and a durable power of attorney for finances under which the principal's agent is his or her spouse is terminated if the marriage is annulled or ends in divorce. This bill terminates a health care power of attorney and a durable power of attorney for finances under which the principal's agent is his or her domestic partner if the domestic partnership is terminated.
Currently, a person's health care provider may not serve as the person's health care agent unless the health care provider is also a relative of the person. Also, a person's relative may not serve as a witness to the execution of the person's power of attorney for health care. A person's power of attorney for health care takes effect upon a finding by two physicians, or a physician and a psychologist, that the person is incapacitated. A person's relative may not make this finding of incapacity. The bill provides that a domestic partner is a relative for activities related to a power of attorney for health care.
Currently, certain reasonably available persons may, under a specified order of priority, make a donation of all or part of another's body near or upon the donor's death (anatomical gift) for use in transplantation or other purposes. The priority in authority for these persons in relationship to the donor is agent under a health care power of attorney, spouse, adult child, parent, adult sibling, adult grandchild, grandparent, adult who has exhibited special care and concern for the donor, guardian, and any other person who has authority to dispose of the individual's body. An anatomical gift may not be made by any of these persons if the decedent has made an unrevoked refusal to donate or if a majority of members in the same class in priority objects. The bill classifies the decedent's domestic partner in the same priority as a spouse for the purpose of making an anatomical gift of the decedent's body or part of the decedent's body.
Probate matters
This bill defines a "surviving domestic partner" as a person who was the domestic partner of the decedent at the time of the decedent's death.
This bill establishes that in probate cases, the following rights for the surviving domestic partner of a decedent are equivalent to the rights of a surviving spouse:
1. The surviving domestic partner of a decedent who dies intestate is entitled to inherit all of the decedent's estate unless the decedent had children that were not also the children of the surviving domestic partner, in which case the surviving domestic partner receives half of the intestate estate.
2. A surviving domestic partner may petition the court for the full property interest the decedent had in a home, subject to payment to the estate of the value of that interest the surviving domestic partner is not entitled to under a governing instrument or under intestacy, within one year from the decedent's death.
3. If a decedent executed his or her will before the registration of the domestic partnership, the surviving domestic partner is entitled to a share of the decedent's estate equivalent to what the share would be if the decedent died intestate, subject to certain reductions, unless the will was executed in contemplation of the domestic partnership or was intended to apply notwithstanding the decedent subsequently entering into a domestic partnership.
4. A surviving domestic partner may petition the probate court for an allowance for support, but the court may order that sum be charged against interest or principal from the estate to which the surviving domestic partner is entitled and the court may apply that allowance against amounts owed for assuming the decedent's full interest in a home. The court may distribute a special allowance for support of the surviving domestic partner even if the distribution of such an allowance would harm the interests of a creditor, after performing a balancing test of the needs of the surviving domestic partner versus the needs of the creditor.
5. A surviving domestic partner may select from the estate certain personal and household items and may be entitled to household items necessary for the maintenance of the home, notwithstanding that those items were bequeathed to another heir.
6. A surviving domestic partner may petition the court to set aside an amount for his or her support of up to $10,000 in value that will be exempt from the claims of the estate's creditors.
7. If the value of the decedent's estate, less the amounts of debt secured by property of the estate, does not exceed $50,000, a surviving domestic partner may settle the estate under summary procedures without the need to appoint a personal representative of the estate.
8. Provides that a termination of a domestic partnership revokes any right to disposition of property related to a decedent who was a domestic partner in the same manner as a divorce revokes any right to disposition of property related to a decedent who was married.
Property matters
Under current law, if persons named as owners in a document of title or as transferees or buyers in an instrument of transfer are described as husband and wife or are in fact husband and wife, the owners, transferees, or buyers are joint tenants. The bill provides that domestic partners are also joint tenants if they are named as owners in a document of title or as transferees or buyers in an instrument of transfer.
Under current law, the transfer of real property between spouses is exempt from the real estate transfer fee. Under the bill, the transfer of real property between an individual and his or her domestic partner is exempt from the real estate transfer fee.
Motor vehicle titles
Under current law, the Department of Transportation (DOT) collects a supplemental vehicle title fee in connection with applications for certificates of title for new vehicles and for vehicles the ownership of which has been transferred. However, this fee is waived for transfer of a decedent's interest in a vehicle to his or her surviving spouse. Also under current law, with an exception, DOT must transfer a decedent's interest in a vehicle to his or her surviving spouse upon receipt of the title executed by the surviving spouse and a statement by the spouse that includes specified information.
Under this bill, a domestic partner is provided the same privileges as a surviving spouse for purposes of these motor vehicle transfer provisions.
Because this bill relates to an exemption from state or local taxes, it may be referred to the Joint Survey Committee on Tax Exemptions for a report to be printed as an appendix to the bill.
Because this bill relates to public employee retirement or pensions, it may be referred to the Joint Survey Committee on Retirement Systems for a report to be printed as an appendix to the bill.
For further information see the state fiscal estimate, which will be printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
SECTION 1. 40.02 (2m) of the statutes is amended to read:
40.02 (2m) "Alternate payee" means a former spouse or domestic partner of a participant who is named in a qualified domestic relations order as having a right to receive a portion of the benefits of the participant.
SECTION 2. 40.02 (8) (a) 2. of the statutes is amended to read:
40.02 (8) (a) 2. In the absence of a written designation of beneficiary, or if all designated beneficiaries who survive the decedent die before filing with the department a beneficiary designation applicable to that death benefit or an application for any death benefit payable, the person determined in the following sequence: group 1, surviving spouse or surviving domestic partner; group 2, children of the deceased participant, employee or annuitant, in equal shares, with the share of any deceased child payable to the issue of the child or, if there is no surviving issue of a deceased child, to the other eligible children in this group or, if deceased, their issue; group 3, parent, in equal shares if both survive; group 4, brother and sister in equal shares and the issue of any deceased brother or sister. The shares payable to the issue of a person shall be determined per stirpes. No payment may be made to a person included in any group if there is a living person in any preceding group, and s. 854.04 (6) shall not apply to a determination under this subsection.
SECTION 3. 40.02 (20) of the statutes is amended to read:
40.02 (20) "Dependent" means the spouse, domestic partner, minor child, including stepchildren of the current marriage or domestic partnership dependent on the employee for support and maintenance, or child of any age, including stepchildren of the current marriage or domestic partnership, if handicapped to an extent requiring continued dependence. For group insurance purposes only, the department may promulgate rules with a different definition of "dependent" than the one otherwise provided in this subsection for each group insurance plan.
SECTION 4. 40.02 (21c) of the statutes is created to read:
40.02 (21c) "Domestic partner" means an individual in a domestic partnership.
SECTION 5. 40.02 (21d) of the statutes is created to read:
40.02 (21d) "Domestic partnership" means a relationship between 2 individuals that satisfies all of the following:
(a) Each individual is at least 18 years old and otherwise competent to enter into a contract.
(b) Neither individual is married to, or in a domestic partnership with, another individual.
(c) The 2 individuals are not related by blood in any way that would prohibit marriage under s. 765.03.
(d) The 2 individuals consider themselves to be members of each other's immediate family.
(e) The 2 individuals agree to be responsible for each other's basic living expenses.
SECTION 6. 40.02 (25) (b) 3. of the statutes is amended to read:
40.02 (25) (b) 3. The surviving spouse or domestic partner of an employee, or of a retired employee, who is currently covered by health insurance at the time of death of the employee or retired employee. The spouse or domestic partner shall have the same right to health insurance coverage as the deceased employee or retired employee, but without state contribution, under rules promulgated by the secretary.
SECTION 7. 40.08 (8) (a) 4. of the statutes is amended to read:
40.08 (8) (a) 4. The former spouse or domestic partner of a participant who is an alternate payee and whom the department cannot locate by reasonable efforts, with such efforts beginning by the end of the month in which the participant attains, or would have attained, the age of 65, shall be considered to have abandoned all benefits under the Wisconsin retirement system on the date on which the participant attains, or would have attained, the age of 70. The department shall close the alternate payee's account and shall transfer the moneys in the account to the employer accumulation reserve. The department shall restore the alternate payee's account and shall debit the employer accumulation reserve accordingly if the alternate payee subsequently applies for retirement benefits under this chapter before the participant attains or would have attained the age of 80.
SECTION 8. 40.08 (9) of the statutes is amended to read:
40.08 (9) PAYMENTS OF BENEFITS TO MINORS AND INDIVIDUALS FOUND INCOMPETENT. In any case in which a benefit amount becomes payable to a minor or to an individual adjudicated incompetent, the department may waive guardianship proceedings, and pay the benefit to the person providing for or caring for the minor, or to the spouse or domestic partner, parent, or other relative by blood or adoption providing for or caring for the individual adjudicated incompetent.
SECTION 9. 40.23 (4) (e) of the statutes is amended to read:
40.23 (4) (e) 1. Subject to subds. 2. to 4., if a participant dies before the distribution of benefits has commenced and the participant's beneficiary is the spouse or domestic partner, the department shall begin the distribution within 5 years after the date of the participant's death.
2. If the spouse or domestic partner files a subsequent beneficiary designation with the department, the payment of the distribution may be deferred until the January 1 of the year in which the participant would have attained the age of 70.5 years.
3. If the spouse or domestic partner does not apply for a distribution, the distribution shall begin as an automatic distribution as provided under subd. 1. or under par. (c), whichever distribution date is earlier.
4. If the spouse or domestic partner dies, but has designated a new beneficiary, the birth date of the spouse or domestic partner shall be used for the purposes of determining the required beginning date.
5. The department shall specify by rule all procedures relating to an automatic distribution to the spouse or domestic partner. These rules shall comply with the internal revenue code.
SECTION 10. 40.23 (4) (f) (intro.) of the statutes is amended to read:
40.23 (4) (f) (intro.) If a participant dies before the distribution of benefits has commenced and the participant's beneficiary is not the spouse or domestic partner, the beneficiary shall do one of the following:
SECTION 11. 40.24 (7) (a) (intro.) of the statutes is amended to read:
40.24 (7) (a) (intro.) Any participant who has been married to the same spouse, or in a domestic partnership with the same domestic partner, for at least one year immediately preceding the participant's annuity effective date shall elect the annuity option under sub. (1) (d), the annuity option under sub. (1) (e), if the reduced annuity under sub. (1) (e) is payable in an optional life form provided under sub. (1) (d), or an annuity option in a form provided by rule, if the annuity is payable for life with monthly payments of at least 75% of the amount of the annuity to be continued to the beneficiary, for life, upon the death of the participant, and the participant shall designate the spouse or domestic partner as the beneficiary, unless the participant's application for a retirement annuity in a different optional annuity form is signed by both the participant and the participant's spouse or domestic partner or unless the participant establishes to the satisfaction of the department that, by reason of absence or other inability, the spouse's or domestic partner's signature may not be obtained. This subsection does not apply to any of the following:
SECTION 12. 40.24 (7) (b) of the statutes is amended to read:
40.24 (7) (b) In administering this subsection, the secretary may require the participant to provide the department with a certification of the participant's marital or domestic partnership status and of the validity of the spouse's or domestic partner's signature. If a participant is exempted from the requirements under par. (a) on the basis of a certification which the department or a court subsequently determines to be invalid, the liability of the fund and the department shall be limited to a conversion of annuity options at the time the certification is determined to be invalid. The conversion shall be from the present value of the annuity in the optional form originally elected by the participant to an annuity with the same present value but in the optional form under sub. (1) (d) and with monthly payments of 100% of the amount of the annuity paid to the annuitant to be continued to the spouse or domestic partner beneficiary.
SECTION 13. 40.25 (3m) of the statutes is amended to read:
40.25 (3m) A participant's application for a lump sum payment under sub. (1) (b) or (2), filed after May 7, 1994, shall be signed by both the participant and the participant's spouse or domestic partner, if the participant has been married to that spouse, or in a domestic partnership with that domestic partner, for at least one year immediately preceding the date the application is filed. The department may promulgate rules that allow for the waiver of the requirements of this subsection for a situation in which, by reason of absence or incompetency, the spouse's or domestic partner's signature may not be obtained. This subsection does not apply to any benefits paid from accumulated additional contributions.
SECTION 14. 40.52 (2) of the statutes is amended to read:
