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Governor Markell Signs Civil Union Law

May 1, 2011

On May 11, 2011, Delaware Governor Jack Markell signed into law the Civil Union and Equality Act of 2011 (the “Act”).  The Act will take effect on January 1, 2012.  The Act establishes same-sex civil unions in Delaware and recognizes valid legal unions – regardless of whether those unions are referred to as civil unions – between two individuals of the same sex entered into in other states.

Employers should be aware of how the Act will affect their policies and procedures.  The Act entitles parties to civil unions to all the same rights, protections, and benefits afforded to married persons.  This means that employers who offer benefits to the spouses of their employees will be required to extend those benefits to the same-sex partners of employees entered into valid civil unions.  This includes any death benefits provided to the widow or widower of a deceased employee.  Additionally, if employers provide benefits for the stepchildren of their employees, they will now be required to offer identical benefits to the stepchildren of employees entered into valid civil unions.

Many interesting, yet-to-be-resolved issues likely will result from the Act; more than a few of these issues will involve employer-provided benefits.  For instance, employers who currently offer benefits to the unmarried same-sex partners of their employees must give serious consideration to eliminating these policies or, as an alternative, expanding them to include unmarried opposite-sex partners.  Because same-sex couples will have the option (as of January 1, 2012) of entering into civil unions that would afford all the legal benefits of marriage, employers who continue to offer benefits to same-sex partners that have not entered into civil unions but do not offer those same benefits to opposite-sex partners that have not married could face claims of reverse discrimination.

The Act will result in amendments to a number of provisions in Delaware law.  Anywhere terms such as “dependent,” “family,” “husband and wife,” “immediate family,” “next of kin,” “spouse,” “stepparent,” and others appear in the Delaware Code, administrative rules or regulations, court rules, governmental policies, common law, court decisions, or any other sources of law or equity in the State of Delaware, those terms now will be defined to include parties to civil unions.  Likewise, where Delaware law refers to marriage or marital status, those terms now will be deemed to include civil unions or civil union status.