Sufficient Scruples

Bioethics, healthcare policy, and related issues.

May 3, 2011

Ask the Ethicist: Can a Non-Spousal Partner Claim Survivor Benefits?

by @ 2:48 PM. Filed under Ask the Ethicist, Disability Issues, General, Provider Roles

Here’s a post submitted to “Ask the Ethicist” by Christopher:

I am gay and for 20 years, I have had a best friend and mentor who is also gay. Besides regular friendship, I have taken care of him when he’s sick, staying at his house, getting him to the doctor. But we do not live together. There has never been a sexual component to the friendship.

He is getting ready to retire. As part of his retirement package, he can designate a domestic partner to receive a payment of over $150,000 a year after his death. He has asked me if I want to do the paperwork to be his domestic partner. As I said, we do not and have never had a sexual relationship. I do not live with him. Is creating this arrangement unethical?

Thanks, Christopher, for your question. It’s an interesting situation; let’s see what readers have to say about it.

My response is below in comments. Readers: feel free to join the discussion!

(And feel free to post your own questions to “Ask the Ethicist” – see link in top right-hand sidebar!)

One Response to “Ask the Ethicist: Can a Non-Spousal Partner Claim Survivor Benefits?”

  1. Kevin T. Keith Says:

    Dear Christopher:

    Your situation is quite common, especially in the gay community, where relationships do not always conform to the rigid definitions set up to define straight family structures, and where family-based caretaking arrangements are not always practicable.

    I take it your question is not about the propriety of your friend wanting to leave something for you. You are one of his “loved ones”, whether or not that is a sexual relationship, and it’s perfectly understandable that he would want to acknowledge that. Since you are not a professional caregiver, there is no question of conflict of interest or improper benefit from your relationship with your friend; his bequest clearly comes to you out of friendship and gratitude, and appropriately so.

    I gather the issue is whether you can claim benefits as a “domestic partner” when your relationship is not domestic and may not be a “partnership” in the marriage-equivalent sense.

    There are a couple of issues that arise here: first, do you in fact legally qualify to receive this benefit?, and, second, is it appropriate for you to claim it if you are not really in the kind of relationship the domestic-partner benefit was intended to acknowledge?

    The legal part is more straightforward. You should check the terms of your friend’s company’s domestic-partner benefits policy, and your state or local law if relevant, to see what is required to actually be a “domestic partner”. The regulations may require that you be living together for a certain period of time, and remain so for the benefit to remain in effect. If so, you may be out of luck (or at least both of you will have to consider whether you will move in with him for the rest of his life to qualify you for this benefit).

    Assuming the legal qualification issue is not a problem, however, is it reasonable for you to do this in the first place? The issue here is essentially one of fraud or misrepresentation: “domestic partnership” is generally understood to be equivalent to “civil unions”, or marriage-lite for gay couples in states that discriminate on the issue of marriage eligibility. “Domestic partners”, that is, are understood to be spouses in all but the legal technicalities. (Some jurisdictions recognize domestic partnerships for unmarried opposite-sex couples as well as gay couples, but either way the general sense seems to be that of a relationship similar to a marriage.) The question you have to ask yourself is whether your relationship with your friend is a “marriage” in a true – rather than legal – sense.

    You say you do not live together, or have sex – but those are not the definitions of marriage, even though they are common in marriage. Not all married couples live together; not all have exclusive sexual relationships; not all have sexual relationships at all. What exactly a marriage is – in the true, not the legal sense – is hard to say. One question that may clarify things for you: if you could legally marry your friend, would you? And: if you met someone else whom you felt strongly for, and you wanted to marry or enter a domestic partnership with them, or just have a romantic relationship with them, would you feel that that challenged or changed your relationship with your friend? If your friend took up a marriage or partnership with someone else, would you feel like you had been “dumped” or divorced? If you answer “yes” to these questions, that suggests that you view your relationship with your friend, as it is, as a kind of marriage, even without sex or cohabitation. If you answer those questions “no”, that suggests your relationship is not a marriage, but something looser. (And, “no” is the answer I seem to get from the tone of your question above.)

    If you do regard your relationship with your friend as a kind of marriage or romantic partnership, then you are back to the legal question I posed first: does that relationship qualify, technically, under the law or benefit agreement? But it seems to me that you already believe your relationship does not qualify in that sense. The issue then is, if you are not really “married” in any sense, but are still an important part of your friend’s life, are you lying by claiming to be domestic partners just in order to get this benefit?

    The short answer is: yes.

    Unless your friend’s company explicitly offers benefits to caregivers or non-spousal-equivalent partners such as yourself, it’s probably safe to say that the benefit in question is intended specifically to be a way for gay employees in committed relationships to achieve equality, in terms of benefit eligibility, with married employees, not just a way for gay employees to spread largesse to their friends. That’s the point, undoubtedly, of the “paperwork” you have to file to register the partnership: the benefit in question is a spousal survivor benefit; to qualify for that, married couples only need to show a marriage certificate, but there is no such thing for gay couples, so you file this form attesting to your relationship instead. That form is essentially your “relationship certificate”, and is intended to perform the function of a marriage certificate: i.e., demonstrate the existence of a committed long-term relationship in the nature of a marriage. Filing that form, knowing that your relationship is not a “marriage” in any sense, is committing fraud.

    Now, one quibble could be raised here: gay couples have to go to greater lengths to qualify for spousal benefits than do married straight couples, even when domestic partnership benefits are available: a domestic partnership often requires a period of living together for 6 months or more to qualify for benefits, whereas married straight couples qualify instantly. And domestic partnerships may (depending on the rules) be dissolved immediately when the living-together arrangement ends, though married couples remain legally married, and their benefit arrangements legally in effect, even if they have been separated for years but not legally divorced. So the lack of true marriage rights for gay couples is not merely insulting and discriminatory, but grossly unfair as well. You might argue that your relationship could be regarded as a kind of “separated partnership”, like a separated married couple, and therefore you should get the same benefits.

    However, that argument, though it points up loopholes and discriminatory inequalities in the marriage laws, doesn’t really apply to your situation. It appears that your relationship is really not like a marriage – separated or otherwise. The benefit you’re seeking is predicated upon a standard – obviously rather narrow and limiting – stereotype of a marriage relationship. Your friend’s company has tried to make it non-discriminatory by including gay partnerships, but they apparently haven’t just said “everybody gets to put whoever they want on their pension”. And so, whether or not the rules are precisely fair between gay and straight marriage-like arrangements, you’re apparently not in a marriage-like arrangement, so you can’t really commit fraud as a way of making up for that inequality.

    This situation points up the limits and lack of realism in our insistence upon pigeonholing people’s relationships. Why shouldn’t somebody’s closest friend and caregiver be eligible for survivorship on their pension plan? Why should taking care of someone at their times of greatest need not be a qualifying relationship, but having sex with them automatically is one? Why should only live-in relationships be recognized as important and committed? It’s a stupid and reactionary way of looking at relationships, and your case points up some of its cruelties – even where your friend’s company actually tried to do the right thing by recognizing gay relationships.

    However, that’s the situation we’re in. And the question for you is not whether all caring relationships should qualify for benefits, but rather whether your particular relationship should be recognized as the type of relationship that does qualify. From what you’ve said, it sounds like that’s not the case. If so, saying otherwise would not be truthful.

    Let me end by asking you again what kind of relationship you think you have with him. Do you feel “married” to him, and vice versa? That may be the main question. From the tone of your letter, I think the answer is “no”, but only you can say. If the answer is in fact “no”, then I don’t think you would be acting honestly by swearing the opposite on the form to get a financial benefit.

    One last point: although he may not be allowed to designate you as his surviving domestic partner, he may still be able to designate you as a beneficiary on life insurance, or for other bequests in his will. This may not be satisfactory, since the partnership benefit you refer to will apparently go to waste if there is no qualifying “domestic partner”, and you would like him to be able to have more benefits to distribute, not just spread his other benefits more thinly. But it’s something to keep in mind.
    Kevin T. Keith´s last blog post ..Our Rights Rest in the Hands of an Scatology- &amp Animal-Porn Director – Which is a Lucky Thing

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