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California Domestic Partner Rights and Responsibilities Act of 2003

 

This article has been published with the permission of the author, Phillip J. Hoskins.  Phillip J. Hoskins is a lawyer in Los Angeles, CA.  Phillip J. Hoskins can be found online at http://gaymarriagelawyers.com/California.htm

California has recently adopted and greatly expanded a Domestic Partnership law designed to proved some of the benefits enjoyed by married couples to unmarried couples who meet the qualifications provided in the statutes. Part of that law takes effect now and part next year however.  It's primary provisions are:

California Domestic Partner Rights and Responsibilities Act of 2003

Expands the rights and responsibilities of domestic partners and modifies the procedures for establishing and terminating a domestic partnership beginning January 1, 2005.

297.  (a) Domestic partners are two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring.
   (b) A domestic partnership shall be established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State pursuant to this division, and, at the time of filing, all of the following requirements are met:
   (1) Both persons have a common residence.
   (2) Neither person is married  to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity.
   (3) The two persons are not related by blood in a way that would prevent them from being married to each other in this state.
   (4) Both persons are at least 18 years of age.
   (5) Either of the following:
   (A) Both persons are members of the same sex.
   (B) One or both of the persons meet the eligibility criteria under Title II of the Social Security Act as defined in 42 U.S.C. Section 402(a) for old-age insurance benefits or Title XVI of the Social Security Act as defined in 42 U.S.C. Section 1381 for aged individuals.  Notwithstanding any other provision of this section, persons of opposite sexes may not constitute a domestic partnership unless one or both of the persons are over the age of 62.
   (6) Both persons are capable of consenting to the domestic partnership.
   (c) "Have a common residence" means that both domestic partners share the same residence.  It is not necessary that the legal right to possess the common residence be in both of their names.  Two people have a common residence even if one or both have additional residences.  Domestic partners do not cease to have a common residence if one leaves the common residence but intends to return.

  SEC. 4.  Section 297.5 is added to the Family Code, to read:
   297.5.  (a) Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.
   (b) Former registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon former spouses.
   (c) A surviving registered domestic partner, following the death of the other partner, shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon a widow or a widower.
   (d) The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses. The rights and obligations of former or surviving registered domestic partners with respect to a child of either of them shall be the same as those of former or surviving spouses.
   (e) To the extent that provisions of California law adopt, refer to, or rely upon, provisions of federal law in a way that otherwise would cause registered domestic partners to be treated differently than spouses, registered domestic partners shall be treated by California law as if federal law recognized a domestic partnership in the same manner as California law.
   (f) Registered domestic partners shall have the same rights regarding nondiscrimination as those provided to spouses.
   (g) Notwithstanding this section, in filing their state income tax returns, domestic partners shall use the same filing status as is used on their federal income tax returns, or that would have been used had they filed federal income tax returns.  Earned income may not be treated as community property for state income tax purposes.
   (h) No public agency in this state may discriminate against any person or couple on the ground that the person is a registered domestic partner rather than a spouse or that the couple are registered domestic partners rather than spouses, except that nothing in this  section applies to modify eligibility for long-term care plans pursuant to Chapter 15 (commencing with Section 21660) of Part 3 of Division 5 of Title 2 of the Government Code.
_____

298.5.  (a) Two persons desiring to become domestic partners may complete and file a Declaration of Domestic Partnership with the Secretary of State.
   (b) The Secretary of State shall register the Declaration of Domestic Partnership in a registry for those partnerships, and shall return a copy of the registered form and a Certificate of Registered Domestic Partnership to the domestic partners at the mailing address provided by the domestic partners.
   (c) No person who has filed a Declaration of Domestic Partnership may file a new Declaration of Domestic Partnership or enter a civil marriage with someone other than their registered domestic partner unless the most recent domestic partnership has been terminated or a final judgment of dissolution or nullity of the most recent domestic partnership has been entered.  This prohibition does not apply if the previous domestic partnership ended because one of the partners died.

 SEC. 8.  Section 299 is added to the Family Code, to read:
   299.  (a) A domestic partnership may be terminated without filing a proceeding for dissolution of domestic partnership by the filing of a Notice of Termination of Domestic Partnership with the Secretary of State pursuant to this section, provided that all of the following conditions exist at the time of the filing:
   (1) The Notice of Termination of Domestic Partnership is signed by both domestic partners.
   (2) There are no children of the relationship of the parties born before or after registration of the domestic partnership or adopted by the parties after registration of the domestic partnership, and neither of the domestic partners, to their knowledge, is pregnant.
   (3) The domestic partnership is not more than five years in duration.
   (4) Neither party has any interest in real property wherever situated, with the exception of the lease of a residence occupied by either party which satisfies the following requirements:
   (A) The lease does not include an option to purchase.
   (B) The lease terminates within one year from the date of filing of the Notice of Termination of Domestic Partnership.
   (5) There are no unpaid obligations in excess of the amount described in paragraph (6) of subdivision (a) of Section 2400, as adjusted by subdivision (b) of Section 2400, incurred by either or both of the parties after registration of the domestic partnership, excluding the amount of any unpaid obligation with respect to an automobile.
   (6) The total fair market value of community property assets, excluding all encumbrances and automobiles, including any deferred compensation or retirement plan, is less than the amount described in paragraph (7) of subdivision (a) of Section 2400, as adjusted by subdivision (b) of Section 2400, and neither party has separate property assets, excluding all encumbrances and automobiles, in excess of that amount.
   (7) The parties have executed an agreement setting forth the division of assets and the assumption of liabilities of the community property, and have executed any documents, title certificates, bills of sale, or other evidence of transfer necessary to effectuate the agreement.
   (8) The parties waive any rights to support by the other domestic partner.
   (9) The parties have read and understand a brochure prepared by the Secretary of State describing the requirements, nature, and effect of terminating a domestic partnership.
   (10) Both parties desire that the domestic partnership be terminated.
   (b) The domestic partnership shall be terminated effective six months after the date of filing of the Notice of Termination of Domestic Partnership with the Secretary of State pursuant to this section, provided that neither party has, before that date, filed with the Secretary of State a notice of revocation of the termination of domestic partnership, in the form and content as shall be prescribed by the Secretary of State, and sent to the other party a copy of the notice of revocation by first-class mail, postage prepaid, at the other party's last known address.  The effect of termination of a domestic partnership pursuant to this section shall be the same as, and shall be treated for all purposes as, the entry of a judgment of dissolution of a domestic partnership.
   (c) The termination of a domestic partnership pursuant to subdivision (b) does not prejudice nor bar the rights of either of the parties to institute an action in the superior court to set aside the termination for fraud, duress, mistake, or any other ground recognized at law or in equity.  A court may set aside the termination of domestic partnership and declare the termination of the domestic partnership null and void upon proof that the parties did not meet the requirements of subdivision (a) at the time of the filing of the Notice of Termination of Domestic Partnership with the Secretary of State.
   (d) The superior courts shall have jurisdiction over all proceedings relating to the dissolution of domestic partnerships, nullity of domestic partnerships, and legal separation of partners in a domestic partnership.  The dissolution of a domestic partnership, nullity of a domestic partnership, and legal separation of partners in a domestic partnership shall follow the same procedures, and the partners shall possess the same rights, protections, and benefits, and be subject to the same responsibilities, obligations, and duties, as apply to the dissolution of marriage, nullity of marriage, and legal separation of spouses in a marriage, respectively, except as provided in subdivision (a), and except that, in accordance with the consent acknowledged by domestic partners in the Declaration of Domestic Partnership form, proceedings for dissolution, nullity, or legal separation of a domestic partnership registered in this state may be filed in the superior courts of this state even if neither domestic partner is a resident of, or maintains a domicile in, the state at the time the proceedings are filed.

 

If you have previously registered as Domestic partners and you do not terminate your domestic partnership before January 1, 2005, you will be subject to these new rights and responsibilities and, under certain circumstances, you will only be able to terminate your domestic partnership, other than as a result of domestic partner's death, by the filing of a court action.
 

Impact:  This radically changes the landscape for those who choose to register as Domestic Partners.  For unmarried couples who do not register, each is responsible for their own debts and is sole owner of their assets. Those who register after January 1, 2005 or who have previously registered but not terminated their registration will automatically share assets and liabilities on a basis similar to community property laws. Furthermore, it will be more difficult to terminate the relationship after that date and it may require filing for "divorce" in court.

Suggestion: For some couples, this is exactly what they want. A marriage-like legal status.  It is my view that unless you know what the legislature has in mind for you with this, including a look at California Family Law provisions, you should not undertake this status.



AB 2216 (Chapter 447) - Effective July 1, 2003

This measure amended Sections 6401 and 6402 of the Probate Code to allow a surviving domestic partner to inherit a specified share of the separate property of his or her domestic partner if the property is not otherwise disposed of by will or other estate plan. As specified in the legislation, effective July 1, 2003, this bill extends this entitlement to a decedent's domestic partner. For more information, please see the notice included with the Declaration of Domestic Partnership form or contact an estate planning attorney.

Key provisions include:

(c) As to separate property, the intestate share of the surviving
spouse or surviving domestic partner, as defined in subdivision (b)
of Section 37, is as follows:
   (1) The entire intestate estate if the decedent did not leave any
surviving issue, parent, brother, sister, or issue of a deceased brother or sister.
   (2) One-half of the intestate estate in the following cases:
   (A) Where the decedent leaves only one child or the issue of one
deceased child.
   (B) Where the decedent leaves no issue but leaves a parent or
parents or their issue or the issue of either of them.
   (3) One-third of the intestate estate in the following cases:
   (A) Where the decedent leaves more than one child.
   (B) Where the decedent leaves one child and the issue of one or
more deceased children.
   (C) Where the decedent leaves issue of two or more deceased
children.
 

ImpactThis provision is now in effect and places registered Domestic Partners in a status similar to married couples with regard to what is called in the law "intestate succession." This means that if a registered Domestic Partner does not make out a will, their property will go to the people named in the text above.

 

Suggestion: For some couples, this is exactly what they want. A marriage-like legal status. Since we urge all married couples to make their own, hand-tailored provisions as to what occurs upon death, we most certainly make the same recommendation. Either you write your Will or Trust, or the state has written one for you!


 

Typical Estate Planning Documents:

Last Will - This is an essential for everyone, regardless of the size of your estate if you want to write your own instructions for how to distribute assets, name a guardian for your children and name the person to handle your last affairs.

Revocable (Living) Trust  - Serves the function of a Last Will but in addition avoids probate, which can save your estate many thousands of dollars.

Health Care Directive In an age when many of us become unable to care for ourselves, this provides instructions for your care and enables someone to make decisions for you when you cannot. If you want life support systems to end at some point, this is a must.

Durable Power of Attorney If you are incapacitated, it may be critical that someone you trust is able to take care of your financial affairs, pay bills, deal with the government, insurers, etc.  This document gives the person you name that power.

Financial Agreement I strongly urge unmarried couples to write their financial understandings in writing, both to provide clarity during life but also to protect against claims by surviving family members on the death of one of you.

Please call me if you have any questions regarding Domestic Partnerships or estate planning.  I would be happy to set up a free consultation for you and explain your options and discuss my affordable plans with you. 

I offer complete estate planning services from $695 for an individual and $895 for a couple.  These plans include all the documents listed above, free notarization and a thorough workbook to guide you through the process.

Phillip J. Hoskins can be reached at 310-209-8080.  As always, mention UGLA and receive a $25 discount.

This article has been published with the permission of the author, Phillip J. Hoskins.  Phillip J. Hoskins is a lawyer in Los Angeles, CA.  Phillip J. Hoskins can be found online at http://gaymarriagelawyers.com/California.htm