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Thursday, November 15, 2012

Should Same-Sex Survivors Be Entitled To Death Benefits?

Today's post comes from guest author Charlie Domer (WI) from The Domer Law Firm.

In Alaska, a woman is seeking worker’s compensation death benefits after her same-sex partner was murdered at work (See article in Business Insurance.)  Ordinarily and in most states, the dependent spouse of a worker killed on the job is entitled to monetary compensation as a “death benefit.” Here, the surviving same-sex woman is arguing that is unconstitutional to prevent her from collecting death benefits that she would have been awarded had she been able to marry her same-sex partner. The resolution of this issue should be interesting.

In Wisconsin, same-sex domestic partners are allowed to collect depending death benefits under the Wisconsin workers' compensation law if certain criteria are met. If an injury causes death, an individual wholly dependent on him or her for support (e.g., live-in spouse, dependent child under the age of 18) is eligible for a death benefit that is equal to four times the worker’s annual wages. Effective July 1, 2009, amendments to the Worker's Compensation Act include dependent's death benefits for same sex domestic partners, as defined a new Chapter 770.

This does not mean that same-sex partners living with each other or in long-term committed relationships are automatically entitled to a death benefit. Same-sex partners must actually register as “domestic partners” with the government. Specifically, to be a dependent for purposes of worker's compensation, eligible domestic partners must do the following: (1) Satisfy all the criteria for forming a domestic partnership contained in §770.05; and (2) Sign and file a declaration of domestic partnership with the office of the registrar of deeds of the county where they reside. The criteria for forming a domestic partnership contained in §770.05 includes: the individuals must be 18 years old, the individuals must be of the same sex, not married or in a domestic partnership with anyone else and have the intent of sharing a residence.

Therefore, if the Alaska case occurred in Wisconsin and the same-sex partners had registered as “domestic partners,” the surviving partner would be entitled to death benefits under Wisconsin workers’ compensation law.