Domestic Partnerships

The California Domestic Partner Rights and Responsibilities Act, enacted in 2003, provided equality to domestic partners, the same rights that are granted to and imposed upon spouses, including community property rights (Family Code Section 297.5). There were technical amendments to the domestic partnership laws enacted in 2004 by Assembly Bill 2580, but inequalities between domestic partners and spouses remained. By excluding joint income tax filings, the state ensured that the earned income of registered domestic partners shall not be treated as community property for state income tax purposes. That tax treatment inequality was addressed and remedied in (Senate) Bill 1827 by the 2006 legislature. Probate rights have also been expanded for registered domestic partners: Probate Code Section 8461 mandates the rights to be appointed as administrator of the estate and domestic partners have the right to notice of conservatorship proceedings and the right to participate in such proceedings and the right to be appointed as conservator pursuant to Probate Code Sections 1460, Section 1811 et. seq.

The enhanced rights of domestic partners, including the right to be appointed as administrator of an estate and the right to notice of and to participate in Conservatorship proceedings, means that domestic partners have rights similar to spouses. Prior inequalities between non-married same-sex relationships have largely been eliminated (though not entirely). This equality can affect the decisions made when domestic partners engage in estate planning, or if one of them suffers emotional disability which requires a Conservator to be appointed. Legislation regarding domestic partners enhances the rights of the partners' with respect to numerous legal rights, including the fact that children of registered domestic partners are entitled to all rights and obligations as those of spouses and affords equal rights in certain state retirement system benefits. There now is a new requirement for termination of a registration of domestic partnership. Family Code Section 298 gives registered domestic partners all the same rights, protections and benefits, and the same responsibilities, obligations and duties under the law; there are many other aspects where equality is still lacking, including aspects of Federal law, tax return status, eligibility for long-term care. Probate rights for surviving domestic partners involved Probate Code Section 8461 regarding the right to be appointed as an administrator of the estate, Probate Code Section 6122.1. The termination of a domestic partnership revokes all powers, requests and nominations with respect to the former domestic partner as well as the aforementioned right to notice and participate in Conservatorship proceedings, according to Probate Code Sections 1460 and 1811, etc.

The decision of domestic partners to be registered or to fail to register or to terminate registration creates differing rights, obligations and responsibilities. Clients thus will have to be counseled and advised as to whether their status will be as registered domestic partners or not. These evolving areas of the law touch many important aspects of a relationship and require technical familiarity with the applicable rules and regulations. Our firm has significant experience in counseling clients and drafting agreements in this regard so the intent and life-style choices of our clients are in compliance with and take full advantage of these new legal principles.