Commissioner of Insurance
Request of Massachusetts Mutual Life Insurance Company for Approval of Domestic Partnership Coverage.
This responds to your letter of December 23, 1993, requesting legal advice on whether you may approve a proposed policy amendment, submitted by Massachusetts Mutual, which affords group accident and health coverage to "domestic partners" under the provisions of O.C.G.A. § 33-24-20.
The policy amendment under consideration here differs substantially from that which was dealt with in the December 10, 1993 opinion concerning coverage which was specifically based upon two ordinances of the City of Atlanta which purported to create the status of domestic partner, contrary to constitutional and statutory limitations. 1993 Op. Att'y Gen. 93-26. The policy amendment currently under consideration does not purport to be dependent upon any such municipal legislation. Therefore, the amendment provisions, standing alone, do not appear to be violative of public policy relating to the powers of municipal governments.
The current proposed coverage would include within the definition of "spouse" an employee's "domestic partner." To be eligible for coverage, the following criteria must be met for each partner: (1) both must have maintained the same residence for at least 12 months, and intend to do so indefinitely; (2) both are each other's "sole domestic partner;" (3) both are at least 18 years of age; (4) both are jointly responsible for
each other's welfare and financial obligations; and (5) neither is married or related by blood. In one alternative, "domestic partners" would not be of the opposite sex.
Nothing in the proposed policy amendment requires a sexual or meretricious component to the relationship. For the purposes of this advice, it will be assumed that the proposed coverage is not intended to facilitate immoral, meretricious relationships, since historically dependent insurance benefits have been denied on that basis. See, e.g., Williams v. Corbett, 260 Ga. 668 (1990). This approach seems to have been utilized by the Georgia Supreme Court in Crooke v. Gilden, 262 Ga. 122 (1992) upholding a property disposition agreement between two lesbians, one of whom sought to invalidate the contract on the ground that it was based upon an immoral consideration, i.e., their meretricious relationship. The court refused to permit parol evidence and looked only to the face of the agreement to determine that it was not void as against public policy.
Moreover, dependency is a statutorily required element in group accident and sickness contracts, where there is no direct familial relationship. O.C.G.A. § 33-30-1. Dependency requires a particularized factual examination of the "amounts, frequency and continuity of actual contributions of cash and supplies, the need of the claimant, and the legal or moral obligations of the employee." Insurance Co. of N. Am. v. Cooley, 118 Ga. App. 46, 48 (1968). "[I]t may be said in general terms that a 'dependent' is one who looks to another for support, one dependent on another for the ordinary necessities of life . . . ." Glen Falls Indemnity Co. v. Jordan, 56 Ga. App. 449, 452-3 (1937). Of course, if the domestic partner relationship does not involve a dependency of one of the partners upon the other then coverage would not be consistent with the requirements of O.C.G.A. § 33-30-1. Since dependency is a question of fact which requires an examination of the particular circumstances of each relationship, I am unable to determine whether the statutory requirement of dependency is met in the very general description of "domestic partner" contained in the contract language. See Cooley, supra at 48. However, for the purposes of this opinion, such dependency will be assumed, and the determination of which will be presumably made at the time coverage is affected.
However, the proposed policy amendment provides that "[T]he term 'spouse' also includes your domestic partner." The term "spouse" means either the male or female partner in a marriage. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982). See also The American Heritage Dictionary (2d College ed. 1976). It does not mean "domestic partner," or describe any other non-marital relationship. Therefore, by equating "spouse" with domestic partner, the proposed policy amendment does contain "inconsistent, ambiguous, or misleading clauses." O.C.G.A. § 33-24-10(2). If coverage for domestic partners was provided for in the contract separately from that afforded spouses, and other requirements such as dependency have been met, this objection would be resolved.
Finally, one alternative coverage provided in the policy amendment would prohibit coverage for domestic partners of the opposite sex, permitting only coverage for same-sex domestic partners. Approval of this type of provision by you may be considered state action resulting in an arbitrary discrimination against opposite sex domestic partners. Such state action would not be permitted under the Fourteenth Amendment to the United States Constitution unless there were a reason, rationally related to a legitimate governmental purpose. Silverstein v. Gwinnett Hosp. Auth., 861 F.2d 1560 (11th Cir. 1988). I am unfamiliar with any such purpose in this instance, and would advise that approval not be given to the subject policy amendment where this distinction is made between same-sex and opposite-sex domestic partners.
For these reasons, it is my official opinion that you should not approve the proposed policy amendment as currently drafted.
MICHAEL E. HOBBS
Deputy Attorney General