February 7, 2002
CONTRACTING FOR RIGHTS/RESPONSIBILITIES ASSOCIATED WITH MARRIAGE
By: Susan Price-Livingston, Associate Attorney
You asked for a follow up to OLR Report 2001-R-0606, "Connecticut Laws Involving Marital Status. " Specifically, you wanted to know which of the statutory rights and responsibilities related to marriage could be established by contract in Connecticut. The Office of Legislative Research cannot give legal opinions and this report should not be considered as such.
We are unable to give a definitive answer because we cannot predict how a court might rule on specific areas of contract. But contracting is not an option where a legislative scheme uses marital status to define executive or judicial branch powers or eligibility for government programs. The following types of laws fall within these categories:
1. statutory rights of action and defenses;
2. benefits of government officials and employees, veterans, and military personnel;
3. favorable or detrimental treatment under state licensing, regulatory, tax, and intestacy laws;
4. vital records and absentee voting procedures;
5. financial disclosure and conflict-of-interest rules;
6. public assistance and housing program eligibility;
7. labor and human rights law protections;
8. penal statutes;
9. marriage licensing provisions; and
10. family court jurisdiction and special programs and procedures for divorce and support matters (many matters within the family court's statutory jurisdiction, such as probate appeals and child custody, are not dependent on marital status).
We estimate that about 2/3 of the 588 laws we identified in our earlier report as referring to marital status relate to matters that do not appear to be susceptible of being established by contract.
Same-sex, unmarried couples can currently enter into contracts to regulate some areas of their relationships. The Human Rights Campaign, an advocacy group for gay, lesbian, bisexual, and transgender families has drafted model agreements covering (1) domestic partner arrangements, including property, gift, inheritance, and support provisions; (2) durable power of attorney for finances, granting a partner access to bank accounts and authorizing him to make financial decisions when the account holder is incapacitated; (3) coparenting arrangements; (4) advanced directives (health care proxy and living will), naming a partner as the person with the first priority to hospital visitation and authorizing him to make medical decisions in the event of incapacitation; and (5) wills. Copies of those model agreements are enclosed.