The Rights of Same-Gender Couples in the State of Hawai>i
as "reciprocal beneficiaries"

    In 1995 in Hawai>i, for the first time in the world, a legislative or parliamentary commission, after careful study of the matter, recommended that full governmental marriage rights be made available to same-gender couples. That commission had been established by the Hawai>i Legislature, and while that Legislature did not act on full rights, it did pass a remarkable law in 1997 which extended a great number of rights and benefits to same-gender couples. The couples are called Areciprocal beneficiaries@ and the 1997 law is known informally as the Reciprocal Beneficiary Act. Additional laws granting further rights and benefits were then passed in 1999, and it appears that more will be added as time goes on.

    The 1995 commission had categorized governmental marriage rights into three groups:

• Those which are important but are generally intangible in value;
• Those which have substantial tangible value; and
• Those rights of a more general nature.

    The rights in this summary are broken down in the general order that the 1995 commission used.

    While this summary provides brief explanations of the various rights and benefits, a longer version, providing synopses (summaries) of all the various laws, is available at _____________. Likewise, a very long version, which contains the full text of all these laws, is available at ____________.

    In this summary the term Apublic workers@ usually means workers of both the State and the four counties (City & County of Honolulu, Hawai>i-Big Island, Kaua>i, and Maui).

    The 1997 package of laws provided substantially similar government rights, in the areas covered by those laws, to same-gender couples. In those areas of benefits and the law which are listed here, therefore, the rights are the same for couples and spouses, whether same-gender or different-gender, as long as their relationships are certified by the government with a marriage or a reciprocal-beneficiary certificate. Equal rights extend to their families (for the first time, these laws have had the effect of legally recognizing same-gender couple=s families, including in-laws). Where the rights of same-gender and different-gender couples, spouses, and families in Hawai>i still differ is in other laws not listed here.

Intangible Benefits

    These are emotionally important rights. They can also, under certain circumstances (such as a jury award), be of great economic value.

• Equal rights to visit a spouse in a hospital.
• The right to make medical decisions when necessary for a spouse.
• The right to make decisions regarding the medical use of a deceased spouse=s body.
• The right to legal notice and other matters involving involuntary hospitalization for mental health reasons.
• Above all else in this category of intangible rights, however, is the movement towards recognition and the granting of equal rights. In the arena of churches and society away from the law, marriage is now inclusive of same-gender and different-gender couples. That is to say, same-gender couples can now marry in many churches, hold receptions, go on honeymoons, or do any or none of the many activities different-gender couples can do.

    And now, in the area of the law, at least in Hawai>i, Afamily@ includes families led by couples whether same-gender or different-gender.

    The Hawai>i legislative staff correctly summarized the 1997 law which extended rights to same-gender couples: AIn establishing the status of reciprocal beneficiaries, the Act provides certain rights and benefits, and represents a commitment to provide substantially similar government rights to those couples who are barred by law from marriage.@

    In those areas of the law which are reviewed here, the rights of same-gender couples and spouses are essentially the same as different-gender couples.

    With this measure of equality comes the priceless but intangible benefit of recognition.

    Spousal- and Dependent-Support Benefits.

    Here the law requires one spouse to support the other. The benefit is to the other spouse.

• Rights under the Uniform Probate Code (UPC), which contains rules on inheritance. When one spouse dies, the other has the senior rights to the deceased=s estate whether the spouse is same-gender or different-gender.

Health Insurance Benefits.

• Discounts of spousal and family health-insurance costs. (The law, however, expired in 1999.)
• Availability of family coverage for same-gender couples and their families.
• Availability of equal-coverage under the State-administered federal Medicaid program.

Other Insurance Benefits.

• Discounts to public workers, their spouse and family members, for long-term-care insurance.
• Discounts to spouse and family members for some types of insurance, and general equality of benefits for couples.

Government and Private Retirement Benefits.

• Pension payments for surviving spouses of retired public workers.
• Health and hospital benefits for same-gender or different-gender spouses (and surviving spouses) of retired public workers.
• Non-accidental-death benefit payment to surviving spouse or children.
• Accidental-death benefit payment to surviving spouse or children.
• Pension, death, and accidental death payments in the private sector.

Private Workers= Compensation Benefits.

• Death benefits are paid for employment-related death.

Wrongful Death Benefits.

• In a wrongful-death complaint, in addition to any criminal action taken by the government against the person responsible for the death, the deceased=s spouse is allowed to sue for loss of support and other damages caused by the death.

Savings in ACreating the Relationship.@

• The 1995 commission found that it cost thousands of dollars to hire lawyers to draw up various documents to attempt to give same-gender couples the same rights as certified different-gender couples. Even then, certain legal rights such as Atenancy by the entirety,@ discussed below, were impossible to create without a change in the law.
• While it still will cost something to get legal documents made out to cover those areas not yet in the law, the progress made so far gets rid of most of the costs. For example, equal probate/inheritance rights with different-gender couples, discussed above, results in major savings to same-gender couples.

Estate Taxes and Related Matters.

• The 1995 commission also found a major benefit in the estate-tax savings by certified couples. Amendments to the probate laws, above, appear to help ease this inequality a bit, although full benefits to same-gender spouses still need to be passed.

ATenancy by the Entirety@ Benefits.

• These grant certain real estate and other benefits to spouses who own real estate.

    These are a relatively large number of rights that are of limited economic value when applied singly to the couple, but when grouped together may add up to a major benefit.

    As one of many possible examples, one of these rights is when a public employee dies and payment is made for any vacation time that may have been saved up but not used. The payment goes to whoever the employee had named. In many cases, however, no eligible person had been named. In that case the payment goes to the worker=s spouse whether same-gender or different-gender.