Benefits Compliance

Summary of Same-Sex Marriage; Domestic Partnerships; Civil Unions; and Common Law Marriage in the United States

The US Supreme Court’s decision in June 2013 (Windsor v US), ruling the Defense of Marriage Act (DOMA) unconstitutional, could potentially alter the landscape on rights granted to same-sex couples across the United States.  The Supreme Court’s decision in Windsor means that federal law will recognize same-sex marriages that were valid in the state in which they were performed.  According to federal law, individual states are responsible for determining what constitutes the “status” of a person, including how marriage or other legal unions are defined.  This can make it very confusing for multi-state employers, since the states are “all over the map” when it comes to laws on same-sex marriage, domestic partnerships, civil unions and common law marriage.  Currently:
  • Fourteen states and the District of Columbia have legalized same-sex marriages.
  • Thirty-five states specifically prohibit same-sex marriage (limiting marriage to a relationship between a man and a woman)
    • Twenty-nine states have constitutional provisions and six have statutory provisions
  • Eight states offer domestic partnerships to same-sex couples (including four that have legalized same-sex marriage and two that ban same-sex marriage)
  • Four states allow same-sex couples to enter civil unions (including three that prohibit same-sex marriage)
  • Fourteen states have laws defining what constitutes common law marriage, and
  • New Mexico remains the one state with no specific legislation on same-sex marriage or civil unions.

While the laws remain somewhat complex in certain states, following is a breakdown of where each state currently stands with regard to same-sex marriage, domestic partnerships, civil unions, and common law marriage.

Same-Sex Marriage


Note: States appearing in gray ban same-sex marriage, and do not provide alternative types of unions (e.g., domestic partnerships or civil unions) for same-sex couples.


As of October 2013, same-sex marriage is legally recognized in fifteen jurisdictions within the United States:  California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont, Washington, and the District of Columbia.


The following states have either constitutional or statutory provisions that ban same-sex marriage:  Alabama, Alaska, Arizona, Arkansas, Colorado*, Florida, Georgia, Hawaii*, Idaho, Illinois*, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada*, North Carolina, North Dakota, Ohio, Oklahoma, Oregon*, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin*, and Wyoming.

*These states offer same-sex couples the option of a civil union or domestic partnership.


Although similar to marriage, a domestic partnership does not necessarily confer all of the rights afforded to married couples by the federal government. Domestic partnerships in the United States are determined by each state or local jurisdiction, so there is little consistency across states on the rights, responsibilities, and benefits accorded domestic partners. Also, they are not recognized by the federal government, so there are no federal protections (such as Social Security survivor benefits). The following states recognize domestic partnerships with various qualifications for registration as well as rights and benefits granted:  California, Maine, Nevada, New Jersey, Oregon, Washington, Wisconsin, and the District of Columbia.


Civil unions provide legal recognition to the couples’ relationship and provide legal rights to the partners similar to those accorded to spouses in marriages. The following four states currently allow civil unions between both same-sex and opposite-sex couples:  Colorado, Hawaii, Illinois, and New Jersey.


Under the common law marriage doctrine, couples are considered legally married, despite not having a marriage license, a ceremony, or a marriage certificate, if they meet specific requirements listed in the statutes of the jurisdiction in which they live. The benefits of common law marriage include the right to inherit upon the death of one spouse and the right to spousal support and an equitable division of property should the marriage terminate. The following states currently recognize common law marriage when various requirements are met:  Alabama, Colorado, District of Columbia, Georgia (only those formed prior to 1/1/97), Idaho (only those formed prior to 1/1/96), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), New Mexico (only for couples relocated from another state, for dissolution purposes), Ohio (only those formed prior to 10/10/91), Oklahoma, Pennsylvania (only those formed prior to 1/1/2005),  Rhode Island, South Carolina, Texas (termed “informal marriage”), and Utah.

For additional details regarding the laws in each state, contact your Leavitt advisor for a copy of the full-length version of this article.