Civil Unions
The Hawaiian Approach
© March 6, 2011, Demian


Civil Unions were enacted into law on February 23, 2011. The legislation provides equal rights and responsibilities as legal marriage within Hawaii. The law takes effect January 1, 2012.

Governor Neil Abercrombie:

“I have always believed that Civil Unions respect our diversity, protect people’s privacy, and reinforce our core values of equality and aloha. For me, this bill represents equal rights for all the people of Hawaii. I appreciate all the time and effort invested by those who shared their thoughts and concerns regarding Civil Unions in Hawaii.”
Representative Blake Oshiro, House Majority Leader:
“Equality is not simply an issue to be debated and voted on, it is an idea that all people are created equal no matter who they are. For too long, Hawaii’s same-sex families have languished as second-class citizens, denied equal civil rights and treatment under the law. Today, we bring the concepts of ohana and aloha back to the people of this great state.”
History

A Reciprocal Beneficiaries law (Act 383), enacted on July 8, 1997, provided for less than 60 benefits to any two people, regardless of their relationship.

The Reciprocal Beneficiaries law was an effort by Hawaii legislators to circumvent providing full, legal marriage for all citizens. It was a reaction to the then ongoing suit for legal marriage.
      [See: Baehr v. Anderson (later called Baehr v. Miike) in Legal Marriage Court Cases — A Timeline.
      Legislative Reactions to Suits for Same-Sex Marriage]

During this time, the Mormon Church was responsible for infusing $1,000,000 into anti-gay, anti-marriage campaigns, which created a climate of fear and hostility.

The legislators hoped Act 383 would persuade the court that Hawaii no longer discriminated against same-sex partners, thereby eliminating the need to order the State to offer legal marriage. Ironically, the Christian Coalition’s chief lawyer, Jay Sekelow, campaigned vigorously in support of this bill — desperate to find anything that would prevent same-sex couples from gaining access to legal marriage.

The Reciprocal Beneficiaries law allowed any two single adults — including same-sex partners, blood relatives or just friends — to have access to less than 60 spousal rights on the state level, and none on the federal level. The state itself appeared confused as to how many rights, at one time specifying “50-60” regulations in their Web site documents regarding this law.

In 1993, the Hawaii Supreme Court ruled that the State’s refusal to grant marriage licenses to same-sex couples was discriminatory. Acting on this ruling was tied up in appeals.

In 1996, another ruling was issued that made clear that the State had failed to demonstrate a “compelling interest” in preventing same-sex couples from marrying. This ruling apparently also had no impact in correcting Hawaii’s hostility toward its own citizens.

One of the most important of the Reciprocal domestic benefits — workplace medical insurance — was eliminated by Hawaii’s attorney general, in 1997, who claimed that no private business was required to offer domestic partner benefits, thereby gutting a major part of the law.

Also, a court limited the health insurance provisions to state employees. Because the Hawaii legislature refused to renew parts of the Reciprocal Beneficiaries law, the requirement for the Public Employees Health Fund to provide coverage for unmarried partners of state workers and retirees expired at the end of June 1999. This left about 60 partners of state workers without medical insurance.

In 1998, Hawaii voters approved the nation’s first anti-gay, anti-marriage law, which granted the legislature the power to reserve legal marriage to opposite-sex couples. This is, of course, in direct contradiction to State and Federal Constitutions which guarantee equal treatment.

The Hawaii Supreme Court ruled, in 1999, that because of the new legislative power, same-sex couples had no access to legal marriage.

As of October 1999 — two years after the law was enacted — only 435 reciprocal beneficiary relationships were on file with the Health Department; and not all couples were of the same-sex. Hawaii has a population of more than 1.1 million.

As of May 17, 2001 — roughly four years after enactment — 578 reciprocal beneficiary relationships were registered.

As of April 2003, the Department of Health still offered Hawaii residents to sign up, however, there were few benefits that remain of use.

Other states had registries that offer far more substantive benefits, for instance:
      California [Domestic Partner Registration: The California Approach]

In January 2010, the Hawaii Senate approved HB444 — a bill to create Civil Unions — by a veto-proof 18-7 majority. Although the House had passed this bill by 33-17 last year, House members used an anonymous voice vote to kill the bill on January 29.

Between 2001-2010, yearly civil union bills were introduced.

On February 1, 2010, Lambda Legal and the American Civil Liberties Union of Hawaii Foundation (ACLU) announced they were suing Hawaii because of the failure of the Legislature to enact a law providing broad legal rights and responsibilities to the state’s same-sex couples.

Full Civil Unions were finally enacted into law when the Hawaii House of Representatives passed HB444 by 31-19, and the Senate passed SB232 by 19-6. Following through on a campaign promise, Governor Neil Abercrombie signed the bill into law on February 23, 2011.

The Civil Union legislation provides the same equal rights and responsibilities as legal marriage, within Hawaii. The law takes effect January 1, 2012.

Since 2008, the Equality Hawaii and the Human Rights Campaign worked closely to build both public and legislative support for Civil Unions. They made tens of thousands of phone calls, e-mails, postcards, petitions and handwritten letters to legislators urging them to approve the Civil Union bill.

Other groups involved in the campaign for equality include the ACLU of Hawaii, Da Moms, GLBT Caucus of the Hawaii Democratic Party, Interfaith Alliance of Hawaii, Lambda Legal, PFLAG-Oahu, Pride Alliance Hawaii, Pride at Work and UNITE HERE Local 5.

Reciprocal Beneficiary (Act 383) Requirements for the Couple

Eligibility

  • Are at least 18
  • Are not married or part of another reciprocal beneficiary relationship
  • Are legally prohibited from marrying the other person under Chapter 572, HRS (the Hawaii marriage law)
  • Have not consented to the reciprocal beneficiary relationship because of force, duress, or fraud
  • Sign and file with the Department of Health a notarized declaration of the relationship
  • Pay $8 registration fee (Another $8 to terminate the status)

How to Register

  • Prepare and file a Registration of Reciprocal Beneficiary Relationship form with the Department of Health (Registration forms may be downloaded from this site - see below).
  • The Registration form must be signed by both parties and notarized.
  • A fee of $8 (money order or cashier’s check only - made payable to the State Director of Finance - and no cash or personal checks will be accepted) must be paid at the time of the filing of the Registration form.
  • At least one stamped, self-addressed, legal-sized envelope must be provided along with the Registration form - two stamped, self-addressed, legal-sized envelopes must be provided if the two Certificates (see below) are to be sent to two different addresses.
  • The notarized Registration form, payment, and envelope must be sent by postal mail to:
          RBR Office
          P.O. Box 591
          Honolulu, HI 96809-0591
  • After being registered, two Certificates of Registration of Reciprocal Beneficiary Relationship (one for each party) will be sent by postal mail using the provided stamped, self-addressed, legal-sized envelope(s).
  • Registration will not be accepted and Certificates of Registration will not be issued on a walk-in basis.
  • Copies of the Certificate of Registration are available upon written request, sent to the same address listed above, at a fee of $8 per copy (payment must be made in the same manner as for the initial registration), and a stamped, self-addressed, legal-sized envelope must be provided along with the request and payment.

How to Terminate a Registration

  • Prepare and file a Declaration of Termination of Reciprocal Beneficiary Relationship form with the Department of Health (Declaration of Termination forms may be downloaded from this site -see below).
  • The Declaration of Termination form must be signed by either of the parties and notarized - contact your local bank about notary public services.
  • A fee of $8 (money order or cashier’s check only - made payable to the State Director of Finance - and no cash or personal checks will be accepted) must be paid at the time of the filing of the Declaration of Termination form.
  • At least one stamped, self-addressed, legal-sized envelope must be provided along with the Declaration of Termination form - two stamped, self-addressed, legal-sized envelopes must be provided if the two Certificates (see below) are to be sent to two different addresses.
  • The notarized Declaration of Termination form, payment, and envelope(s) must be sent by postal mail to:
          RBR Office
          P.O. Box 591
          Honolulu, HI 96809-0591
  • After filing, two Certificates of Termination of Reciprocal Beneficiary Relationship (one for each party) will be sent by postal mail using the provided stamped, self-addressed, legal-sized envelope(s).
  • Declarations of Termination will not be accepted and Certificates of Termination will not be issued on a walk-in basis.
  • Copies of the Certificate of Termination of Reciprocal Beneficiary Relationship are available upon written request, sent to the same address listed above, at a fee of $8 per copy (payment must be made in the same manner as for the initial registration), and a stamped, self-addressed, legal-sized envelope must be provided along with the request and payment.


Some Areas Covered by Reciprocal Beneficiaries

  • Worker’s compensation
  • Public employees health fund [no longer applicable for private or public employees]
  • Public employees retirement [no longer applicable for private or public employees]
  • Health insurance [no longer applicable for private or public employees]
  • Life insurance [no longer applicable for private or public employees]
  • Inheritance without a will
  • Wrongful death
  • Hospital visitation (and health care decisions)
  • Consent to postmortem exams
  • Loan eligibility
  • Property rights (including joint tenancy)
  • Tort liability
  • Protection under Hawaii domestic violence laws

In contrast to the “Reciprocal” status, Hawaiian legal marriage gives access to more than 160 rights and responsibilities on the state level [What Rights Come with Legal Marriage? - Hawaii], as well as access to more than 1,138 federally regulated rights [ U.S. Federal Laws for the Legally Married].

To be effective and useful to same-sex couples, domestic partner laws need to contain far greater numbers of rights than Hawaii’s to even begin to come close to the rights conferred with legal marriage. Such laws need to be crafted strongly enough to withstand an adverse opinion from a state’s attorney general. And they need to be portable, able to be used in more than just one state.

Ineffective Status of Reciprocal Beneficiaries

The following overview statement, excerpted from a report from the Hawaii State Auditor, further shows how ineffective this domestic partner status is. According to this report, the fiscal impact to the State has been minimal-to-nonexistent.

If more couples found the domestic partner status of practical use, than it is likely that more couples would sign up. If they did, it would be reasonable to expect that, through legitimate usage the costs to the state would be higher, finally paying to same-sex couples what they now unjustifiably withhold.

OVERVIEW: Study of the Fiscal Impact of Providing
Certain Benefits to Reciprocal Beneficiaries

Report No. 99-17, April 1999
The Auditor, State of Hawaii
Summary

Act 383, Session Laws of Hawaii 1997 (the reciprocal beneficiaries law) made available to people who cannot marry each other, some benefits that previously were available only to married couples. Many types of “couples” may declare a reciprocal beneficiary relationship. Examples are homosexual partners, or a widow and her son, or two brothers.

Pursuant to a directive in Section 73 of Act 393, we studied the fiscal impact of providing reciprocal benefits under the provisions of the act related to workers’ compensation, the Hawaii Public Employees Health Fund, the Employees’ Retirement System of the State of Hawaii, and prepaid health insurance.

We found that reciprocal beneficiaries make up a very small portion of the state’s population. The Department of Health reported 435 reciprocal beneficiary relationships on file as of October 1998. With the numbers so small, we were not surprised to find that the reciprocal beneficiary law has had little fiscal impact in the areas of areas of workers’ compensation, public employee health and retirement benefits, and prepaid health insurance. The limited fiscal impact is also due in part to the limited benefits granted by the law. Our findings include the impact on state government, county government, the private sector, and consumers in Hawaii.

The reciprocal beneficiary law amended the workers’ compensation on law to include reciprocal beneficiary as possible recipients of an employee’s death benefits. But the Department of Labor and Industrial Relations was aware of no cases involving reciprocal beneficiary as the payment recipient.

The reciprocal beneficiary law also amended the law governing the Hawaii Public Employees Health Fund to establish a reciprocal beneficiary family coverage health benefits plan for public employees and retirees. But the state and county governments contributed less than $56,000 during FY 1997-98 as their share of reciprocal beneficiary family coverage premiums under the health fund. The actual additional premium cost of the coverage to the State and counties may have been only about $12,000 in that year (compared with government’s total contribution of more than $262 million as its share of health insurance costs for non-reciprocal beneficiary employees). We did find that special costs were incurred by some public employees who took advantage of the new reciprocal beneficiaries coverage.

In addition, the reciprocal beneficiary law amended the law governing the Employees’ Retirement System of the State of Hawaii to include reciprocal beneficiaries as eligible recipients of benefit payments upon an employees’ death. However, officials of the retirement system informed us that a reciprocal beneficiary has been named as a death benefit incipient in only one case.

The reciprocal beneficiaries law did not amend the prepaid health care law but did amend the state Insurance Code in ways that could affect organizations providing prepaid health care coverage. However, the state attorney general has concluded that applicable provisions apply only to insurance companies and not to employers, health maintenance organizations, or mutual benefit societies. Privately run health care organizations see little impact from the reciprocal beneficiary law.

We also concluded that the law’s fiscal impact could change if more people become reciprocal beneficiary or if the law is amended (or interpreted by a court) to require broader coverage. Finally, we noted that Section 2 of the law — which requires the Hawaii Public Employees Health Fund to establish a reciprocal beneficiary family coverage plan for any employee who is a reciprocal beneficiary and elects such a plan — will be repealed on June 30, 1999 unless the requirement is extended through legislation.

Recommendations and Response

We made no recommendations.

The Hawaii Public Employees Health Fund commented that lack of available reciprocal beneficiary information resulted in low enrollment in the health fund’s reciprocal beneficiary health plans. The fund believes that if the Legislature extends the law and modifications are made to collective bargaining agreements, more employees and retirees will enroll their reciprocal beneficiaries.


Marion M. Higa, Hawaii State Auditor
Office of the Auditor, 465 South King St., #500, Honolulu, Hawaii 96813
808-587-0800; fax 808-587-0830


Benefits to Civil Union Spouses & Spousal Liabilities & Responsibilities
Supplied by the office of Senator Les Ihara, Jr - April 15, 2010

Most Significant Benefits to Civil Union Spouses

  1. Hold property as community property with spouse and inherit the property when the spouse dies.
  2. Take four weeks of unpaid family leave from work each year to care for spouse or family member who is ill.
  3. File a joint state income tax return with spouse to receive a lower tax rate.
  4. Receive a funeral/burial allowance and death benefits from an employer if spouse is killed on the job.
  5. Receive a government spouse’s remaining unpaid wages, vacation pay, and sick leave when he or she dies.
  6. May receive spouse’s available pension and retirement benefits.
  7. Adopt spouse’s child and adopt a child jointly with a spouse.
  8. Receive notice of spouse’s death from the coroner.
  9. Inherit a share of spouse’s estate if there is no will.
  10. Receive protection from the Family Court to dissolve civil union and obtain orders to protect self, children, and assets.
  11. Refuse to testify against spouse charged with a crime, and in any civil or criminal case refuse to disclose confidential spousal communications.
  12. Benefit from a housing allowance that spouse receives when serving in the Hawaii National Guard.
  13. May receive a long-term care benefits plan through a government employee spouse, if available.
  14. Receive medical insurance through a government employee spouse’s health benefits plan.
  15. Receive a monetary allowance from deceased spouse’s estate for living expenses while the estate is in probate.
  16. Hold real property with a spouse as a tenancy by the entirety.
Moderately Significant Benefits to Civil Union Spouses
  1. Be protected from a property lien on a home residence when the state tries to recover public assistance monies paid to spouse.
  2. The government cannot attempt to get reimbursement from a deceased spouse’s estate for medical assistance payments to spouse.
  3. Give permission for a stepchild’s school enrollment and participation in curricular and extracurricular school activities.
  4. Receive veteran’s preference for civil service employment when a military spouse dies or is disabled.
  5. Visit spouse or related family member who is in jail or prison.
  6. Use a leave sharing program to care for spouse or family member who is ill.
  7. Receive compensation when an employee spouse is injured or killed while doing disaster relief work for the state.
  8. Obtain copies of health records or authorize release of records of a deceased spouse.
  9. Authorize spouse’s autopsy if claiming the body.
  10. Receive a homestead allowance of $15,000 and up to $10,000 for household furniture, furnishing, and personal effects if a deceased spouse has no will.
  11. Demand that a deceased spouse’s will be promptly filed in court.
  12. Receive recognition for civil union in Hawaii courts if it was legally entered in a foreign country or another state.
  13. Receive recognition for a Hawaii civil union in states that legally recognize same?sex unions.
  14. Receive optional auto insurance coverage on spouse’s auto policy.
Least Significant Benefits to Civil Union Spouses
  1. Go with a witness spouse who is placed in a witness protection program.
  2. Donate to a candidate spouse’s election campaign within the family's aggregate limit of $50,000.
  3. Receive notice and a hearing if a deceased spouse’s remains are to be disinterred from a state-owned cemetery.
  4. Legally hunt under a hunting license purchased by spouse.
  5. Work at a child care facility without having to get a criminal background check if the children being cared for are the worker’s stepchildren.
  6. Obtain free copies of divorce or adoption decrees from a state court, and free certified copies of vital statistics records from the Department of Health when needed for a service-connected claim involving a military/veteran spouse.
  7. Request the Bureau of Conveyances to record spouse’s military discharge certificate.
  8. Receive a spouse’s Hawaiian Homelands tract of land by conveyance if otherwise qualified.
  9. Receive these rights if spouse is murdered: (1) speak at the killer's sentencing hearing, (2) receive restitution, (3) speak at the killer’s parole board hearing, and (4) receive notice when the killer has been released on parole.
  10. Have the value of spouse’s labor taken into consideration when the Board of Agriculture determines the minimum milk prices to be paid to a milk producer.
  11. Qualify for a low-income loan to lease or purchase state lands for a personal residence.
  12. Be relieved of certain requirements when trying to lease state-owned agricultural and nonagricultural park lands if one’s spouse dies.
  13. A government employee’s designation for named beneficiaries automatically becomes null and void upon marriage or divorce.
  14. Be transported in an employee spouse’s government vehicle in an emergency.
  15. As an adoptive parent, obtain medical information collected by the Department of Health concerning the child’s biological parents.
  16. Supervise an underage driver with a learner’s permit if a licensed driver and the child’s parent.
  17. Qualify as a care giver for a minor if related by marriage.
  18. If a minor or incapacitated adult has a simplified custodial trust and there is no conservator, may step in as a family member by civil union under certain circumstances to make or receive transfers to the trust, and may ask a court to name a custodian, remove a custodian for cause, and petition for an accounting of the trust assets.
  19. Serve as the designated agent to make mental health and medical decisions for spouse.
  20. File spouse’s death certificate.
  21. Inherit a land patent issued to spouse by the Board of Commissioners.
  22. Receive certain exemptions for a condominium development project when selling all of the residential units to spouse or family members.
  23. Can have a valid life insurance policy for both spouses’ benefit that is not delivered in Hawaii.
  24. Receive a burial allowance when a police officer, fire fighter, or bandsman spouse dies.
Spousal Liabilities and Responsibilities
  1. Must maintain, provide for, and support one another during the civil union relationship.
  2. Share joint liability for all debts for necessaries with one’s spouse.
  3. Bring and defend lawsuits involving the couple’s child.
  4. Liable as a parent for various acts committed by one’s child and any damages that occur as a result.
  5. Supply spouse or ex-spouse’s full name, the time and place of the civil union ceremony, and the name of the person who performed the civil union ceremony when applying to the Land Court.
  6. Only one spouse in a couple may purchase a public land lot that is sold for residential purposes.
  7. Cannot serve as a precinct official for elections when spouse is running for public office.
  8. May receive loans issued by the state to repair a residence or business damaged by a state declared disaster, but only after providing a plan for taking care of the family’s needs.
  9. Cannot buy or lease public land for a farm if spouse owns or has previously owned such land.
  10. May not be able to lease public lands for agriculture if spouse owns agricultural lands.
  11. Receive the same amount of money for relocation for a family as an individual receives if displaced by a federally funded highway program.
  12. Receive the same amount of money for a family for relocation expenses as an individual receives if displaced by an airport land acquisition program.
  13. May be ineligible to purchase a residential lot through a DLNR program if spouse owns property or has applied to purchase property in certain areas.
  14. May limit the number of people that can reside in an adult family boarding and care home, hospice home, or family care home depending on one’s status as a spouse or family member.
  15. May experience limitations in eligibility for housing and loans administered by the Hawaii Housing and Development Corporation depending upon whether or not there is a spouse and dependents, and the spouse’s income.
  16. Government employees and legislators must include the financial interests of spouses when filing their financial disclosure forms.
  17. Cannot serve as a witness for spouse’s advanced mental health directive.

Not a Model for Family Recognition in U.S.

This domestic partnership status does not work as a model for America, because implementing an equivalent legal status to marriage requires duplicating 150-to-350 laws in each state, and more than 1,138 laws on the federal level. [See U.S. Federal Laws for the Legally Married.] The whole idea is completely impractical.

Further, domestic partnerships are usually not recognized outside of the issuing state. Because of the lack of portability, they create a patchwork legal status as a couple moves or vacations.

Registrations do not have any legal weight in the Federal sphere, and, to date, only California and New Jersey officially recognizes this kind of status from other states. However, there is ambiguity in the California code, so it may not recognize it.
      [See California: Registration]
      [See New Jersey: Domestic Partnership Act]

While such contracts are an attempt to create equal treatment, they only reinforce a separate and totally unequal status, one we consider to be a manifestation of apartheid. [See Marrying Apartheid: The Failure of Domestic Partnership Status]


Hawaii State’s Official Web Information


For a list of 60 of the 160 rights and responsibilities of legal marriage, please see our article:
      What Rights Come with Legal Marriage? - Hawaii


Differences Between Domestic Partner Registration and Legal Marriage
Registration
  1. Simple, notarized form registration
  2. No ceremony
  3. Mailed to the Office of Vital Records (handles business affairs)
  4. Conveys some rights
  5. Not a true next-of-kin
  6. Must cohabit
  7. Must share finances
  8. Ended by mailing a termination form
Legal Marriage
  1. License required
  2. No ceremony required
  3. License officiated by clergy, court, or justice of the peace
  4. Conveys hundreds of rights
  5. A true next-of-kin
  6. Can live apart
  7. Not required to share finances
  8. Divorce laws apply
Federal rights NOT Covered by Registration
  • Immigration Rights — Ability for a non-U.S. spouse to become a full citizen.
  • Social Security — Ability to collect benefits upon death of a spouse.
  • Federal Taxes — No joint filing. Pay taxes on job benefits.
  • More than 1,138 laws that are triggered by legal marriage [See U.S. Federal Laws for the Legally Married]




Governments that offer Full Legal Marriage
Nations

        Netherlands (2001)
        Belgium (2003)
        Canada (2005)
        Spain (2005)
        South Africa (2005)
        Norway (2009)
        Sweden (2009)
        Mexico City (Mexico) (2009)
        Iceland (2010)
        Argentina (2010)
        Portugal (2010)
        France (2013)
        New Zealand (2013)
US States and Territories

        Massachusetts (2004)
        California (2008)
        Connecticut (2008)
        Iowa (2009)
        Vermont (2009)
        New Hampshire (2009)
        District of Columbia (2009)
        New York (2011)
        Maine (2012)
        Washington (2012)
        Maryland (2013)
        Rhode Island (2013)
        Delaware (2013)
        Minnesota (2013)
        Illinois (2013)
        Utah (2013)
    

        New Jersey (2013)
        Hawaii (2013)
        New Mexico (2013)
        Michigan (2014) - stayed pending legal challenge
        Oregon (2014)
        Wisconsin (2014)
        Arkansas (2014) - stayed pending legal challenge
        Pennsylvania (2014)
        Indiana (2014)
        Nevada (2014)
        Virginia (2014)
        Oklahoma (2014)
        Idaho (2014)
        Arizona (2014)
        Wyoming (2014)
Native American Tribes

        Coquille Tribe in OR (2008)
        Suquamish Tribe in WA (2011)
        Little Traverse Bay Bands
          of Odawa Indians
in MI (2013)

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