Synopsis (Summary) of the
Rights and Benefits Available to
Same-Gender Couples in the State of Hawai>i
as "reciprocal beneficiaries"

Introduction

    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.

    This summary includes all rights and benefits extended to same-gender couples by the laws of the State of Hawai>i. It is up to date as of the start of 2000. The rights and benefits are broken down in the general order that the 1995 commission used.

    While this summary provides brief explanations and concise synopses of the various laws, a full copy of all those laws is also available by clicking here.

    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 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 (section 323-2).
     323-2 gives equal rights to same-gender spouses as different-gender spouses with respect to visitation.
  
• The right to make medical decisions when necessary for a spouse (sections 323-2 and 327E-2).
     323-2 gives equal rights to same-gender and different-gender spouses with respect to making health-care decisions for the patient.
     327E-2 lists interested persons involved with making medical decisions; the spouse (whether same-gender or different-gender) is the first listed person after the patient.
  
• The right to make decisions regarding the medical use of a deceased spouse=s body (sections 327-3, 327-5.5, and 453-15).
     327-3 gives spouses (whether same-gender or different-gender) the first right to make, revoke, or object to anatomical gifts.
     327-5.5 mentions getting the family=s permission; it looks to Section 327-3, above, for listing the order of persons allowed to make the decision, with spouses listed first whether same-gender or different-gender.
     453-15 gives spouse (whether same-gender or different-gender), among others, the authority to permit a postmortem examination of the body.
  
• The right to legal notice and other matters involving involuntary hospitalization for mental health reasons (sections 334-6, 334-59, 334-60.4, 334-60.5, and 334-125).
     334-6 requires spouse, same-gender or different-gender, to be responsible for any payment due for expenses related to the care of a hospitalized spouse.
     334-59 gives the patient the right to telephone their spouse, whether same-gender or different-gender on emergency admission to a psychiatric facility. If the patient declines the right to telephone, the facility=s staff shall attempt to contact the spouse or family.
      334-60.4 requires notice or waiver of notice to spouse, whether same-gender or different-gender, on hearing for involuntary hospitalization.
     334-60.5 allows Court to adjourn the hearing for involuntary hospitalization if the spouse, whether same-gender or different-gender, has not been informed.
      334-125 requires notice of hearing for involuntary outpatient treatment to spouse, whether same-gender or different-gender.
  
• 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 listed in this report, the rights of same-gender couples and spouses are essentially the same as different-gender couples, and the synopses and summaries in this report says so, again and again.
  
      With this measure of equality comes the priceless but intangible benefit of recognition (sections 572C-1, 572C-2, 572C-3, 572C-4, 572C-5, 572C-6, and 572C-7).
      572C-1 explains the purpose of Chapter 572C, which is to extend certain rights and benefits.
      572C-2 lists certain findings of the Legislature, including that certain rights and benefits should be extended to same-gender couples.
      572C-3 provides some definitions which are used in Chapter 572C in order to grant various rights and benefits.
      572C-4 lists prerequisites for becoming reciprocal beneficiaries.
      572C-5 establishes the method for becoming certified in a same-gender relationship and so eligible for the rights and benefits.
      572C-6 discusses the rights, benefits, and obligations granted by Chapter 572C.
      572C-7 establishes procedures for the termination of the certified same-gender relationship.

    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. Includes sections 560:1-201, 560:2-102, 560:2-103, 560:2-114, 560:2-201, 560:2-202, 560:2-203, 560:2-205, 560:2-206, 560:2-207, 560:2-208, 560:2-209, 560:2-210, 560:2-211, 560:2-212, 560:2-213, 560:2-214, 560:2-301, 560:2-402, 560:2-403, 560:2-404, 560:2-405, 560:2-705, 560:2-711, 560:2-802, 560:2-803, 560:2-804, 560:3-203, 560:3-301, 560:3-302, 560:3-403, 560:3-703, 560:3-713, 560:3-901, 560:3-902, 560:3-906, 560:3-915, 560:3-916, 560:3-1212, 560:5-301, 560:5-309, 560:5- 311, 560:5-312, 560:5-408, 560:5-410, 560:5-422, 560:5-601, and 560:6-107.

    Health Insurance Benefits.

• Discounts of spousal and family health-insurance costs (section 87-25.5).
      87-25.5 specified that public workers got the same family health-insurance coverage whether their spouses were same-gender or different-gender. The cost of covering a spouse or family member is less than market cost because of the size of the number of insurance-plan participants. The law, however, expired in 1999.
• Availability of family coverage for same-gender couples and their families (Part IV of Chapter 23, and sections 431:10A-104, 431:10A-115, 431:10A-120, 431:10A-206, 431:10A-601, 432:1-101, 432:1-104, 432:2-201, and 432D-23).
      Chapter 23, Part IV. This was an unusual matter where Part IV of Chapter 23 requires complex social and financial studies to be undertaken before health insurance changes can be made. In order to grant the health-insurance rights and benefits included below, without the delay of these required studies, the 1997 law establishing reciprocal-beneficiaries waived this requirement of the studies.
      431:10A-104 lists requirements for individual accident and sickness insurance policies. One requirement is that each policy can cover just one individual, unless it covers a couple, whether same-gender or different-gender, and their family.
      431:10A-115 requires that individual accident and sickness insurance policies providing for family coverage on an expense-incurred basis, and including their children, must also include any newborn children of the couple, whether same-gender or different-gender. See also Section 431:10A-206, below.
      431:10A-120 requires amongst other things that all individual accident and sickness insurance policies to provide special benefits certain inherited abnormalities. The insurance policies include those for both same-gender and different-gender couples and their families.
      431:10A-206 requires that group or blanket accident and sickness insurance policies providing for family coverage on an expense-incurred basis, and including their children, must also include any newborn children of the couple, whether same-gender or different-gender. See also Section 431:10A-115, above.
      Section 431:10A-601 established equal policies for individual accident and sickness insurance for same-gender couples and their families.
      Section 432:1-101 includes a commentary by legislative staff noting that while insurance companies must provide family coverage equally to same-gender and different-gender couples and the families under the five Sections of Chapter 431:10A given above, mutual benefit societies may provide coverage to same-gender couples and their families, but don=t have to. See Section 432:1-104, below.
      Section 432:1-104 allows mutual benefit societies to establish benefit plans for the sickness, disability, or death of its members, including members= spouses (whether same-gender or different-gender) and their children. But see Section 432:1-101, above.
      Section 432:2-201 describes certain requirements of fraternal benefit societies, which are allowed to issue insurance for their members. The legislative commentary to this Section notes that insurance for same-gender couples and their families is regulated by the State and this would include insurance from fraternal benefit societies. In effect, this is similar to the commentary above concerning mutual benefit societies, namely that they can issue insurance to same-gender couples and their families, but don=t have to.
      Section 432D-23 requires that health maintenance organizations (HMOs) must include within their coverage all benefits provided in a list of eight others laws and one other Chapter. Of these, two of the laws, Sections 431:10A-115 and 431:10A-120, listed above, directly mention equal coverage for same-gender couples and their families. Legislative commentary, however, notes that the State=s attorney general made a ruling that Section 432D-23 should nevertheless not apply to same-gender couples or their families.
• Availability of equal-coverage under the State-administered federal Medicaid program (sections 431L-3 and 431L-4).
      Section 431L-3 recognizes equal family rights and responsibilities under Medicaid for the health insurance coverage of their children, whether the couple is same-gender or different-gender.
      Section 431L-4 requires employer compliance for the coverage of children of workers under Medicaid for the health insurance of the children, and in so doing this Section recognizes equal family rights and responsibilities, whether the couple is same-gender or different-gender.

• Discounts to public workers, their spouse and family members, for long-term-care insurance (section 87-23.5).
      87-23.5, refers to a planned voluntary insurance plan available to public workers which will cover long-term-care benefits. The plan is expected to go into effect later in the year 2000. While public workers will have to pay the bill if they sign up for the insurance, the cost will be lower than market cost because of the size of the pool of participants. The worker can sign up to cover themself and their spouse (same-gender or different-gender), as well as their grandparents, parents, children, and certain other beneficiaries.
  
• Discounts to spouse and family members for some types of insurance, and general equality of benefits for couples (sections 431:10-234, 431:10C-103, 431:10H-205, and 431:10H-402).
      431:10-234 grants special spousal rights concerning life-insurance policies, whether the spouse is same-gender or different-gender.
      431:10C-103 generally includes within a motor-vehicle insurance policy the spouse of the person named in the policy, whether same-gender or different-gender.
      431:10H-205 gives policies for the continuation or conversion of long-term-care coverage from older insurance policies to policies under the new long-term-care law, Chapter 431:10H. The Section guarantees a spouse the right to continued coverage in certain cases, even upon the ending of the certified relationship, whether same-gender or different-gender.
      431:10H-402 gives people the right to purchase long-term-care insurance policies for themself or one that covers themself, their spouse (whether same-gender or different-gender), and their parents and grandparents.

• Pension payments for surviving spouses of retired public workers (section 88-1).
      88-1. Qualified public workers get a pension when they retire. If they then die before their spouse (whether same-gender or different-gender), the spouse continues to collect a part of the pension until the spouse dies or enters into a new certified relationship.
  
• Health and hospital benefits for same-gender or different-gender spouses (and surviving spouses) of retired public workers (sections 88-4 and 88-5).
      88-4.  If a retired public worker is dependent on their retirement check as their sole income, or if they make less than $2,400 a year of total income (including their retirement checks), then the worker is entitled to free medical and hospital care from State or County doctors and hospitals. This medical and hospital care is also available for free to the retired worker=s spouse whether same-gender or different-gender. Furthermore, if the retired worker dies before his or her spouse, then the spouse is allowed to continue to receive the free medical care until that spouse enters into a new certified relationship.
      88-5 backs up Section 88-4, above, by authorizing the listing of qualified beneficiaries of the health and hospital benefits.
  
• Non-accidental-death benefit payment to surviving spouse or children (sections 88-84, 88-93, and 88-286).
      88-84.  For Acontributory plan@ public workers (generally those who began work before the mid-1980s), their substantial Adeath benefit@ payment if they die while still employed is paid to a named heir. But if the worker failed to properly name an heir for this benefit, or if the named heir is not qualified, then the Adeath benefit@ payment is made to the worker=s spouse, whether same- or different-gender. Spousal payments cease when the spouse dies or enters into a new certified relationship. If the worker=s spouse is deceased at the time of the death of the retired public worker, then payments are made to their children in certain cases, or to the worker=s estate.
      88-93.  If the named heir (see Section 88-84) had been named when the public worker was single, and if the public worker then enters into a certified relationship (either same-gender or different-gender), then the named heir is no longer qualified. On the other hand, if the public worker named their spouse (either same-gender or different-gender) as their named heir, and then the public worker ends that relationship, then that named heir is also no longer qualified.
      88-286.  For Anon-contributory plan@ public workers (generally those who began work after the mid-1980s), their substantial Adeath benefit@ payment if they die while still employed is paid to their spouse, whether same-gender or different-gender. (That is, there is no option of naming an heir as in the case of Acontributory plan@ workers.) Spousal payments cease when the spouse dies or enters into a new certified relationship. If the worker=s spouse is deceased at the time of the public worker=s death, then payments are made to their children in certain cases.
  
• Accidental-death benefit payment to surviving spouse or children (sections 88-85 and 88-286).
      88-85 describes this benefit for Acontributory plan@ public workers. If the worker dies from an accident at work, then a special sizeable pension is paid to the surviving spouse whether same-gender or different-gender, with no separate payment to their children. These spousal payments stop if the surviving spouse then dies or enters into a new certified relationship. If the spouse is deceased at the time of the accident, then the special pension goes to their minor children. Likewise, if the surviving spouse later dies or enters into a new certified relationship, thus losing the special pension, then the special pension payments again go to their minor children. Payments to the children, in any case, end when the last minor child reaches adulthood.
      88-286.  For qualified Anon-contributory plan@ public workers, their special sizeable pension is paid to their surviving spouse, whether same-gender or different-gender, with a separate special pension paid to their minor children. The spousal payments stop if the surviving spjouse then dies or enters into a new certified relationship. The children payments stop when the last minor child reaches adulthood.
  
• Pension, death, and accidental death payments in the private sector.
      Government cannot order the private sector to grant pensions or death benefits to current workers besides those payments covered by the workers= compensation system, described below. However, by setting an example, the government has traditionally influenced at least parts of the private sector to grant extra benefits. Previously this influence was not to grant equal rights to same-gender couples; now, at least in this areas of pensions and related benefits, the example being shown to the private sector is one of equal rights.

    Private Workers= Compensation Benefits.

• Death benefits are paid for employment-related death (sections 386-34, 386-41, 386-42, 386-43).
      386-34 grants private workers the right to compensation (Aworkers= compensation@) under a special required insurance program that employers must pay for, if the worker is permanently disabled (whether totally or partially) on the job. If that worker later dies for any other reason, the remaining benefits are paid to the worker=s spouse, whether same-gender or different-gender, on behalf of the spouse and their children.
      386-41 grants private workers compensation Adeath benefits@ if they are killed on the job. Payment includes funeral and burial expenses, and also weekly payments to the surviving spouse, whether same-gender or different-gender, and their dependents. If there is no surviving spouse or dependents, a benefit is paid to their non-dependent parents.
      386-42 backs up the above law by defining clearly who is qualified for the workers= compensation benefits. The major beneficiary is the spouse, whether same-gender or different-gender. If the spouse wasn=t even living with the deceased worker at time of the worker=s death, the spouse is still entitled to benefits as long as the spouse was dependent upon the worker.
      386-43 clarifies the workers= compensation benefit system. Spouses, whether same-gender or different-gender, can receive weekly benefits only until they die or enter into a new certified relationship. However, when they do enter into a new relationship, they get a sizeable final lump-sum payment. If the spouse dies or enters into a new relationship, their qualified children inherit the right to receive the full weekly benefits.

    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 (sections 663-1 and 663-3; note that section 663-1 grants spousal rights broader than just wrongful-death).
      663-1 allows, among other things, people to sue others for damages done against them or their spouse, whether same-gender or different-gender.
      663-3 builds upon Section 663-1, above, and authorizes damages for wrongful death for losses as a result of the death of a spouse, whether same-gender or different-gender. Wherever it refers to spouses, it is inclusive of both same-gender and different-gender spouses.

    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. See the summary of Section 560:3-916 in the probate/inheritance law discussion above.

  ATenancy by the Entirety@ Benefits.

• These grant certain real estate and other benefits to spouses who own real estate (section 509-2).
      Section 509-2 permits, under certain conditions, spouses (whether same-gender or different-gender) to jointly own real estate under the Atenancy by the entirety@ category of ownership.

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.