Domestic Partnerships

Domestic Partnership Facts
What is a Registered Domestic Partnership?

On September 19, 2003 Assembly Bill 205 (“AB 205”) was signed into law.  This Bill was known as the “California Domestic Partner Rights and Responsibilities Act of 2003,” (“Act”).  The idea of this bill is to confer almost all the same state-conferred rights and responsibilities to same-sex couples as married couples have in California for the purpose of promoting stability in relationships.  This law applies to both same sex relationships and to couples of the opposite sex where at least one of the partners is both eligible for old age Social Security benefits and is over the age of 62.

This Act became fully operative on January 1, 2005.  The California Legislature modified the law so that all gender-specific terms referring to spouses in codes, regulations, forms and case law must be read to include domestic partners wherever necessary to implement the rights under this Act.

The substantive provisions of AB 205 provide: "Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under [California state] 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." Cal. Fam. Code § 297.5(a).

Do my partner and I qualify for a Registered Domestic Partnership?
The following is a summary of criteria that must be met prior to being able to register:

1. The registering partners must share a common residence;
2. Neither partner may be married to someone else or be a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity;
3. The partners must not be related by blood such as to prevent their marriage to each other;
4. The partners must each be at least 18 years of age;
5. The partners must either be of the same sex or, if of different sexes, one or both must meet the eligibility for old-age Social Security benefits and be over 62 years old; and
6. Both persons must be capable of consenting to the domestic partnership.

What is the registration process?

Actual registration is done with the Secretary of State by preparing a form entitled “Declaration of Domestic Partnership” You can get this form and find out more information about Domestic Partnerships by going to the Secretary of State website at http://www.sos.ca.gov/dpregistry/.  The partnership begins as of the date of registration.

What are the benefits of Registering as Domestic Partners?

In general, the rights and responsibilities are almost the same as a married couple in the state of California.  (See Family Code § 297 et seq.)

The Act does not confer rights created by state initiative.  In other words, the Act cannot modify a voter-passed constitutional provision.  However, the Act does not preclude any state or local agency from exercising its regulatory authority to implement statutes providing rights to, or imposing responsibilities on registered domestic partners.

Some of the rights and responsibilities conferred to domestic partnerships are: (This list is a sample only of some of the rights and responsibilities conferred.  It is not exhaustive.  Please refer to the Family Code and the Probate Code for more)

1. Financial support to one another during and after the relationship such as possibly “spousal support” from the other partner;
2. Rights regarding child custody, visitation and child support;
3. Parentage presumptions;
4. Mutual third party debt responsibility;
5. Fiduciary duties to other partner;
6. Standing to assert certain legal claims previously only available to married persons;
7. Housing protections;
8. Employment rights to family care and medical leave, and bereavement leave;
9. Authority to authorize medical treatment;
10. Hospital visitation;
11. Right to oversee a deceased partner’s remains;
12. Government-related benefits such as worker’s compensation and transfer of licenses on death;
13. Ability to apply for absentee ballots for a partner;
14. Property rights through intestate succession;
15. Access to the family law courts for adjudication of community property;
16. Communication privileges, including the right not to be forced to testify against a partner.

Is a Registered Domestic Partnership the same as a marriage?

No.  A registered domestic partnership (“RDP”) in California is not the same as a marriage between a man and a woman. 

An RDP is likely not recognized by other states, and is not recognized by the federal government.  Therefore, any rights and responsibilities conferred to married couples by the federal government are not conferred to Registered Domestic Partners.  This is especially true in the area of tax issues.  It is always a good idea to consult with certified public account prior to changing your status from single to RDP or vice versa.  There are many tax benefits that married couples receive that are not applicable to Registered Domestic Partners.  Social Security benefits of decedent spouse are not available to RDP.  Domestic partners of former service members are not entitled to any veteran’s related benefits.  Federal employment protections (some of which reach into the private sector) do not apply to RDP’s.  There are many other federal rights which RDP’s are excluded from.

How do I know if my partner and I should register or not?

Some couples may already be registered pursuant to local ordinances, and even with the passage of AB 205, these local domestic partnerships are still valid.  However, you must register with the State of California through the Secretary of State in order to have all the rights and responsibilities conferred to your partnership as are available through AB 205.

Whether or not to register is a personal choice that you must make with your partner.  A RDP will not be right for every couple depending upon the needs, wants, and financial circumstances of a particular couple.

The cost of defining the flow of rights and responsibilities by using alternative methods such as co-habitation agreements and estate planning tools may be cost prohibitive for many couples.

Other couples may have significant pre-registration assets of each partner that they want to make sure are not included in the community property system.  These couples may wish to contractually work out their arrangement or have prepared a pre-registration agreement which is essentially the same as a premarital agreement entered into by couples prior to marriage.  (formerly known as a pre-nuptial)

Each partner should seek the advice of an attorney and certified public accountant prior to making this decision.  There are some wonderful benefits to having a RDP, but with those benefits come legal responsibilities that should not be taken lightly.

Further, there are other alternatives to registering as domestic partners such as living as co-habitants with a co-habitation agreement.  (See section on Co-habitation agreements).  Another alternative is the use of estate planning tools that do not require registration.
Other informative links on the issue of Registered Domestic Partnerships and LGBT families:

1. http://www.nclrights.org/publications/ab205faq.htm
2. http://www.familypride.org/
3. http://www.lagaycenter.org/site/c.mvI4IhNZJwE/b.893323/k.A7C4/Parents__Families.htm

Dissolution/Termination of Domestic Partnership
How do my partner and/or I terminate a RDP?

There are essentially two ways to terminate a RDP.  These methods of termination parallel the methods of terminating a dissolution action for a married couple.  If certain criteria are met, there is a simple way to dissolve by filing with the Secretary of State a form entitled, “Notice of Termination of Domestic Partnership.”  The criteria for this type of dissolution can be found in Family Code §299.  You can get this form and find out more information about Domestic Partnerships by going to the Secretary of State website at http://www.sos.ca.gov/dpregistry/.

If you and your partner do not meet the requirements of Family Code §299, then you will have to file an action with the Superior Court of California for dissolution of a Registered Domestic Partnership.  This is essentially the same as filing for dissolution of marriage.  The Family Code will be the applicable law as to how to dissolve your RDP including issues regarding custody, visitation, support, debts, division of assets and others.

Cohabitation Agreements

As an alternative to becoming Registered Domestic Partners or marrying, couples (opposite sex or same sex) can enter into a contractual arrangement with one another called a “cohabitation agreement.”  A cohabitation agreement allows a non-married/non RDP couple to delineate the rights and responsibilities that will flow from their relationship.  These contracts are often referred to as “Marvin Agreements” stemming from the California Supreme Court case of Marvin v. Marvin (1976) 18 C3d 660.  The law of contract governs these types of agreements unlike family law which governs registered domestic partnerships and marriages.  Couples should be wary, though, when cohabitating with another person in a relationship because even if there is no formal written cohabitation agreement between the parties, there still may be an implied contract demonstrated by the conduct of the parties.  Also keep in mind, that California does not recognize common law marriages.

Conclusion

Couples now have choices when forming a partnership regardless of whether marriage is or is not available to that couple.  They can choose to participate in the community property system of California and gain access to other “marriage-like” benefits by registering as domestic partners, they can register as domestic partners with a contractual pre-registration agreement in order to opt out of certain obligations, or they can craft their own contractual arrangements using co-habitation agreements as well as estate planning tools.