Artificial Reproduction Technique and the Cohabitant
As people find alternative forms of becoming a family, the term "Domestic Partnerships" has come into common use. Generally, a domestic partnership refers to the people who are unmarried, but who are living together.
The importance of the recognition of a domestic partnership is growing each day. Benefits that used to be exclusively obtainable by married couples are becoming more available to those who live together in a committed relationship, but have not sought government approval through a marriage. However, domestic partnerships are recognized by municipalities, and indeed are endorsed by some in order for the members to obtain insurance and other benefits. A growing number of municipalities also extend insurance coverage and other benefits to those persons who have registered as domestic partnerships. These include, but are not limited to, Harvard, Princeton, CUNY, Disney Corp. and Apple Computers.
In addition, many educational organizations and private employers have also recognized domestic partnerships.
Municipalities such as Seattle and San Francisco, which have extended employee benefits to cohabitants do so in fulfillment of a specific governmental policy that recognizes domestic partners as spousal equivalents, or else, because of a broader policy regarding non-discrimination. It makes no difference whether a domestic partnership is made up of opposite or same sex partners, but there is always requirement that a bona-fide relationship, based on some sort of registration as well as other documentation exists.
The argument against enrolling partners of a domestic partnership in health insurance coverages has always been the issue of fraud and substantial financial risk. However, the actual experiences of municipalities does not bear out the fears of the insurers. Statistics indicate that an insurance exposure is not any greater or claim experience more damaging when same sex partners, or unmarried opposite sex couples are covered, then when traditional marriage partners are covered.
Thus, as non-discrimination policies concerning sexual orientation and preference, become more common, the logical concomitant is that insurance benefits will also be provided to members of domestic partnerships. However, in order to provide some stability in establishing the existence of a domestic partnership relationship, various requirements should be considered. Businesses should require written statements of domestic partnership, completed by an employee. These statements should include that the parties have lived together for a period of time, at least approximately six months, have a mutual and exclusive commitment to each other and to each other's well-being that they are financially independent and share common assets and expenses, as well as common debts. Neither party should be married to anyone else, nor may there be a presently existing domestic partner of anyone else. They may not be related to a blood relationship that would bar a traditional marriage in that state, and both parties should be over the age of 18. In addition, the domestic partners should be prepared to present and have on file with the employer various documents, including a joint lease or mortgage, utility bills, bank account and/or credit card statements, or a joint checking, savings or brokerage account statement, all of which are probative evidence of a domestic partnership relationship. Another problem that often exists is that the non-employee partner in a domestic partnership relationship may have children. These children, in order to be covered, must also meet certain requirements.
1. Those requirements should include that the children be under the age of 18 and reside in the household with the employed domestic partner.
2. That the employed partner has assumed full parental responsibility and control for the children, though, not necessarily legal custody.
The non-employee domestic partner should have legal custody of the children, or other legal relationship such as guardianship, adoption, or foster child relationship.
Finally, there should be a way for the employee to terminate the health insurance or other coverage upon the termination of the cohabitation relationship. In this case, a simple form stating that the relationship is terminated, and that the non-employee partner is no longer to be covered would be sufficient. However, it should be pointed out that, at this point in time, it is unknown whether such a cohabitant would be entitled to COBRA benefits if the domestic partnership is terminated. While the COBRA law, in and of itself, does not mention domestic partners, non-discriminatory Federal Statutes, when read in conjunction with COBRA, it might require these benefits to be extended to a non-employee's cohabitant.
One way of dealing with the COBRA issue would be for the insurance coverage itself to contain provisions that would parallel the COBRA provisions for spouses, thus permitting the non-employee cohabitant to purchase the insurance for a period of three years after the termination of the relationship. All insurance policies should be read carefully to determine whether such provision exists. If it does not, it is likely, at this point in time, that upon the termination of the cohabitant relationship, the non-employee spouse will be left without insurance coverage.
It also must be mentioned that in 1995, the Superior Court of Alaska decided the case of Tumeo and Wattum v. The University of Alaska.
. In that case, the Judge opined that, since Alaska has a statute that makes it unlawful for an employer to discriminate against a person because of a person's marital status, the defendant was in violation of that statute in not providing health care benefits to cohabitants. (It should also be noted that the Alaska Human Rights Act offers broader protection to employees than does title 7 of the United States Code.) The court held that the University by providing added health care coverage for married employees, but not for unmarried employees was compensating married employees to a greater extent than it compensated unmarried employees. As a result, the University's actions fell directly within the discrimination definition based on marital status. The court did consider the fact that same sex cohabitants could not obtain a valid marriage license in Alaska, (or anywhere else in the country). However, after discussing this, it was decided that the statute dealt with the status of a person based on whether he was married and not whether particular individuals could marry. In view of that, the court held that the University of Alaska did have to provide health insurance to domestic partners. However, it does not seem that this case has been cited by courts of other states as of this time. It does appear, however, that this decision is the wave of the future. State laws that ban discrimination based on marital status would seem to bar employers from offering privileges to married employees that they do not offer to unmarried employees who live in a cohabitation relationship, be they opposite sex or same sex relationships.
Beginning with the case of Marvin v. Marvin, 18 Cal.3d 660, 1976, a new word entered the American vocabulary: Palimony. Palimony was supposed to be an alimony like support payment for one partner of a cohabiting unmarried couple. The argument was that, even where there was no explicit written or oral contract, the actions of the parties could make it appear that a constructive contract existed and therefore it was enforceable. Pursuant to that contract, payments might be owed one of the cohabitants for support.
The seminal case regarding this theory was the case of the actor, Lee Marvin, who has been living with Michele Triola for a number of years. Triola alleged that she and Marvin had an agreement that was proved by their actions. She gave up her own career in order to take care of Marvin and become his homemaker. His portion of the agreement was that she was entitled to one half of his income and property that was acquired during the relationship. When the relationship was terminated, Michele Triola sued for what was labeled "palimony," i.e., support payments based on the alleged oral agreement. The appeals court permitted her to proceed on the ground that a constructive contract for such services could exist, but the jury awarded plaintiff nothing, stating that she did not prove either that an implied contract exists or, in the alternative, her worth as a housekeeper.
Most states other than California follow a more traditional common law rule that permits express written and oral contract theories, but rejects implied or constructive contract theories. In addition, no court in the United States would accept the fact that a meretricious contract that is one that is exclusively for sexual services is enforceable. The following are states that have enforced cohabitation agreements, either oral or written.
ALASKA -- Levar v. Elkins, 604 P.2d 602 (1980)
ARIZONA -- Carroll v. Lee, 148 Ariz. 10, 712 P.2d 923 (1986), Cook v. Cook, 142 Ariz. 573, 691 P.2d 664 (1984)
CONNECTICUT -- Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987)
FLORIDA -- Poe v. Estate of Levy, 411 So. 2d 253 (1982)
HAWAII -- Maria v. Frietas, 832 P.2d 259 (1992)
INDIANA -- Glasgo v. Glasgo, 410 N.E.2d 1325 (1980)
IOWA -- Slorum v. Hammond, 346 N.W.2d 485 (1984)
MARYLAND -- Donovan v. Seuderi, 51 Md.App. 217, 443 A.2d 121 (1982)
MASSACHUSETTS -- Green v. Richmond, 369 Mass. 47, 337 N.E.2d 691 (1975)
MICHIGAN -- Carnes v. Sheldon, 109 Mich. App. 204, 311 N.W.2d 747 (1981), Tyranski v. Piggins, 44 Mich. App. 570, 205 N.W.2d 595 (1973)
MISSISSIPPI -- Pickens v. Pickens, 490 So. 2d 872 (1986)
NEBRASKA -- Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981)
NEVADA -- Hay v. Hay, 100 Nev. 196, 678 P.2d 672 (1984), Warren v. Warren, 94 Nev. 309, 579 P.2d 772 (1978)
NEW HAMPSHIRE -- Joan S. v. John S., 121 N.H. 96, 427 A.2d 498 (1981), Tapley v. Tapley, 122 N.H. 727, 449 A.2d 1218 (1982)
NEW JERSEY -- Crowe v. DeGioia, 90 N.J. 126, 447 A.2d 173, apeal after remand, 303 N.Y. Super. 22, 495 A.D.2d 889, aff'd., 102 N.J. 50, 505 A.D.2d 591 (1986)
NEW MEXICO -- Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (1980)
NEW YORK -- Morone v. Morone, 50 N.Y.2d 481, 429 N.Y.S.2d 592, 407 N.E.2d 438 (1980)
NORTH CAROLINA -- Suggs v. Norris, 88 N.C. App. 539, 364 S.E.2d 159, cert. denied, 322 N.C. 486, 370 S.E.2d 236 (1988)
OREGON -- Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978), Ireland v. Flanagan, 51 Or. App. 837, 627 P.2d 496 (1981)
PENNSYLVANIA -- Mullen v. Suchko, 279 Pa. Super. 499, 421 A.2d 310 (1980)
TEXAS -- Small v. Harper, 638 S.W.2d 24 (1982)
WASHINGTON -- In re Estates of Thornton, 81 Wash.2d 72, 499 P.2d 864 (1972)
WISCONSIN -- Watts v. Watts, 137 Wis.2d 506, 405 N.W.2d 303 (1987), Matter of Estate of Steffes, 95 Wis.2d 490, 290 N.W.2d 697 (1980)
WYOMING -- Kinnison v. Kinnison, 627 P.2d 594 (1981)
B. Estate Planning -- Wills and Trusts
One of the advantages of marriage over a cohabitation relationship is that a spouse in a marriage is a legal heir, and has a legal right in every state of the Union to inherit, with or without a Will. However, the only way cohabitants can inherit is with a Will or through a living or testamentary trust.
Trusts are rights and properties held by one party for the benefit of another. There are many reasons for a cohabitant to enter into a trust agreement. These include maintaining control over assets, avoiding probate, and avoiding inheritance taxes. A testamentary trust is a trust created by a Will or a living or an inter-vivos trust document. A testamentary trust does not have the tax advantages of a living Will, but does allow the beneficiary to use the property during his or her lifetime. The remaining principal or corpus would go to a second person after the beneficiaries death. A living trust is a written agreement in which a trustee agrees to hold assets contributed by the trustor for the benefit of third parties or beneficiaries. In some states, but not all, the trustee, trustor and initial beneficiary may all be the same person. A Will or a testamentary trust becomes effective only upon the deaths of the testator. However, a living trust becomes effective immediately. As long as a living trust is not irrevocable, you can amend or revoke it at any time, and the trustor retains absolute control over the assets transferred to the trust, if he is the trustee. At the time of the trustor's death, the living trust either becomes irrevocable or it terminates with the trust assets going to designated beneficiaries, or it continues to stay in existence, the trustees continue to hold assets for the benefit of the remaining beneficiaries. It is one way of avoiding the expense of probate.
There are both disadvantages and advantages to Wills and to living trusts. Some of them are as follows:
1. Privacy -- A Will, when it is probated, becomes public knowledge, as do the assets listed under the Will. A living trust, unless there are extraordinary circumstances, never becomes public, and thus, neither the assets, nor the terms of the trust ever become public record.
2. Probate -- A Will in order to be enforced must go through a form of probate procedure in the court system for which there are fees, usually based on the size of the estate, and possibly who the beneficiaries if there are minors involved since guardians may have to be appointed (however, see below). Beneficiaries normally cannot receive the bulk of the assets until probate is completed which could take a year or more. With a living trust, probate is avoided, and trust assets are distributed almost immediately by the trustee to the beneficiary.
3. Complexity -- A living trust agreement is more complex in that the assets, while the trustor is alive, must be transferred to the trustee and held in the name of the trust. The trustee is the one who the distributes the assets and income and manages the corpus (the body) of the trust. A Will, however, takes effect only upon the testator's death, and is usually less expensive to draft and to change than a living will, though, as stated above, probate is more expensive to hold property.
Other ways of dealing with estate planning with cohabitants is by a joint tenancy. This is the method by which people jointly hold title to either real or personal property. The joint tenants own equal shares and jointly own property. They may sell their one half interest. However, when one dies, the remaining owner automatically take over ownership as a right of survivorship of the real or personal property. This is different than a tenancy by the entirety, which is available only to married persons. In a tenancy by the entirety, each spouse owns the whole property, cannot sell their interest, and is similar to a joint tenancy only in that, upon death, the survivor takes all.
Tenancy in common is a way for two or more people to hold property. Each has the right to bequeath or sell his or her share of the property to someone other than the co-owners. It is often also easier to sell its interest as the tenants in common than as a joint tenant. At the tenant's death, his interest passes either through his Will or through a living trust, or by intestacy.
Each of these techniques dealing with estate planning should be discussed with a cohabitant, because each has its own pros and cons and every case is different. The only method of estate planning, which is a total disaster for cohabitants, is to have nothing because, pursuant to the intestacy laws of every state, the cohabitant cannot receive any of the estate without a will or other document. Thus, it is essential for a practitioner to be willing to sit and discuss estate planning, living wills, and durable springing powers of attorney with the members of a cohabitation relationship so that they can fully understand what their rights and obligations are, and deal with these problems in a way that is suited for their personal needs, at a time that is not pressured or emotionally chaotic.
Modern technology permits both same sex and opposite sex cohabitants to conceive children. It is perhaps of utmost importance for a practitioner to be aware of the various artificial conception techniques that exist, the pitfalls and benefit regarding each, and the problems regarding adoption especially in same sex relationships (in opposite sex relationships, cohabitants have the right under a paternity proceeding, for the support of their child).
The various techniques that exist today include artificial insemination, GIFT, ZIFT, ICSI, and assisted hatchery. There are also problems dealing with surrogates and gestational carriers, as well as egg and sperm donors. Artificial insemination is when a woman is inseminated with a donor's sperm. A donor cannot be paid for his sperm, but only recompensed for his time. The problem with artificial insemination with a donor's sperm is the issue of both paternity and child support. If the sperm is from an anonymous donor, then these problems do not exist since documents signed prior to insemination make clear everyone's rights. However, when the donor's sperm is from a known donor, unless the donor surrenders his rights in writing to the child, and the child is adopted by the other cohabitant in the relationship, the possibility exists that the mother may come after him at a later date requesting support, or the donor might look for visitation rights later on.
In-vitro fertilization and ovum transplantation -- These techniques are the cutting edge of artificial reproductive technology. They include GIFT (Gamete inter-fallopian transfer) ZIFT, (zygote inter-fallopian tube transfer) and assisted hatching (a way of making it easier for sperm to fertilize eggs). The techniques first gained publicity when Louise Brown, the first in-vitro (in glass) baby was born in England in 1978. Since that time, in-vitro fertilization has become almost common place with women, taking drugs such as claimed that cause them to ovulate several eggs at a time. This technique has been in the news since it has caused the multiple births, resulting in 7 and 8 children at a time. The in-vitro technique in which the eggs are fertilized outside of the body and later replaced in the uterus is more difficult and expensive. Usually a maximum of four or five embryos are introduced into a uterus through this technique. It is unusual for all the emphasis to implant. This technique however has created problems in that the wrong embryos have been implanted in women's uterus, giving rise most recently to the phenomenon of a woman giving birth to one white and one African-American child, and the litigation that followed. In that case, the biological parents (the African-American couple) were given custody of the Black infant, but the mother who was, in essence, a gestational carrier and had no biological connection to the child, was given visitation rights by the court.
There has also been several cases involving what happens to the frozen embryos that are not used, if the relationship terminates. The most recent case in New York is Kass v. Kass, which held that the contract signed by the parties, prior to the procedures, must be enforced.
The technologies involved in artificial reproduction have changed from a turkey baster to state of the art genetic reproduction techniques. The law, however, has not necessarily kept up. It is incumbent on every lawyer dealing with cohabitants to be familiar with this area which seems to be where much acrimonious and expensive litigation is being generated.
Surrogate Motherhood -- The most famous case involving surrogate motherhood is In Re Baby M, 109 N.J. 396, 537 A.2d 1227 [1988]). In that case, MaryBeth Whitehead contracted to be a surrogate mother for William Stern and his wife. Whitehead was paid $10,000 for carrying the child and agreed, upon the birth of the child, to turn the baby over to Elizabeth and William Stern. She changed her mind, refused to give the baby to the Sterns, and litigation followed. The courts, based on the child's best interest, permitted custody of the baby to go to the Sterns, but Whitehead was given visitation rights.
Because of this case, many legislatures moved to define whether surrogacy is legal in their respective states. In New Hampshire, Ohio, Virginia, Tennessee, Arkansas, Florida and Nevada surrogacy is legal. In Indiana, North Dakota, and Nebraska surrogate contracts are unenforceable. In New York, Maryland, Michigan, Arizona, New Mexico, Utah and Washington surrogacy carries criminal penalties.