In the state of Wisconsin, tens of thousands of LGBT couples and unmarried straight couples do not enjoy the same legal rights, safeguards, and security as married couples—in areas ranging from property ownership1 to family-medical leave2 to notification after one partner has been the victim of a crime3. Our laws explicitly give rights in these areas to married couples, but they make no provision for unmarried couples in long-term, committed relationships. This creates what we call the FAIRNESS GAP.
This information is provided for informational and educational purposes only. Fair Wisconsin does not render professional or legal services, and nothing contained in or linked to our Web site should be construed as legal advice (which always must be tailored to the facts of a particular case).
Chapter 2: When the Chips Are Down: How Does the Law NOT Protect Gay Families?
The shock of a family crisis is unfortunately all too familiar to most of us. If not in our family, we all know someone who has suffered a heart attack, a car accident or other health emergency. It sends us reeling when a serious medical challenge, or God forbid death, impacts our family. For many, the shock of these losses can be compounded by our legal system, because when the chips are down, the law can fail to protect gay spouses (and all unmarried couples) and their dependents.
Two types of legal rights that arise in these crises are survivor support benefits and legal support obligations. Both of these categories are meant to provide a safety net for individuals in times of need and a road map of their individual responsibility. Sadly, in both cases, LGBT and other unmarried couples find they are left out of these equations – just when they may need it most.
Survivor Support Benefits
The first category of spousal and dependent support obligations under Wisconsin law concern the rights of a survivor after the death of his or her spouse. These rights are known as survivor support benefits.
One prominent example is found in Section 109.03(3) of the Wisconsin Statutes. It allows a surviving spouse to collect outstanding paychecks from a deceased spouse's employer, which may happen as early as five days after the death. This benefit can play a crucial role. Sometimes the ability to collect wages makes a difference in whether or not the surviving spouse may continue making house payments while the deceased spouse's estate makes its way through probate.
Another example – with the potential for a longer term effect – concerns surviving spouses of state employees who were enrolled in the Wisconsin Retirement System. In many cases, the surviving spouse is allowed to rollover the deceased employee's retirement benefit, treating it much like a traditional IRA. Without this option, the income tax consequences of inheriting a retirement benefit may end up depleting a larger share of the inherited assets. Thus, the spousal rights under the Wisconsin Retirement System allow a grieving spouse to access more of the retirement assets than would otherwise be available.
Neither legal protection is available to LGBT and other unmarried couples.
In addition to these examples, many other survivor support benefits exist under Wisconsin law. Many are targeted to specific groups, such as the spouses of deceased veterans. What all of these benefits have in common is the potential to bring assistance and comfort to those left behind after a family is torn apart. Unfortunately, not all families stand to benefit.
Legal Support Obligations
The second category concerns a set of state laws that often go unrecognized: legal support obligations to spouses and other family members. These obligations exist somewhat behind the scenes. However, in key instances, the importance of the broad legal fabric of spousal and dependent support obligations becomes evident.
For example, Section 54.958 of the Wisconsin Statutes assists spouses of individuals who become incapacitated due to an accident or serious illness. Rather than allowing the person's assets to remain inaccessible, the statute allows the spouse to take custody of the assets, under the right circumstances, "for the use and benefit of the incapacitated individual." In addition, under Section 54.966, a related statute, the spouse may apply the funds toward the use and benefit of others who are legally entitled to support from the incapacitated individual, such as his or her minor children. These provisions rest on the legal support obligations between the spouses and other family members, which assure that the incapacitated spouse's money will be used for his or her benefit or that of the family.
Section 49.19(1)(c)(2) of the Wisconsin Statutes provides another illustration. It relates to state aid to families with dependent children, commonly known as "AFDC." The statute defines the pool of AFDC recipients to include not only the parent of a qualifying dependent child, but also the spouse of such parent. The spouses' obligations to support each another, together with the parent's obligation to the child, provide assurance that the aid will stay within the intended pool of beneficiaries. Hence, the obligation allows the spouse to be included as a recipient in times of dire need.
In partnerships without legal recognition, neither of these statues applies.
Conclusion
All of us face the possibility that our loved ones will face a serious emergency. We also worry about a day in the future when we may not be here to look after those we love. When we are no longer around, spousal and dependent support benefits can play an important role in addressing these concerns. They are designed to protect he rights of those we love and highlight the responsibilities we have after the shock of the emergency passes.
Yet the fabric of support benefits does not stretch far enough to include every family. For tens of thousands of unmarried couples, the law does not function as smoothly as it would otherwise function if LGBT and unmarried couples in committed relationships were covered. In this FAIRNESS GAP, it's clear that banning gay marriage and civil unions has some very real consequences – just when families are at their most vulnerable and need fairness and understanding the most.
