California has enacted laws which provide for some, but not all, of the rights of a married couple being available for couples who file the requisite documents with the California Secretary of State. The thrust of the law is to eliminate some of the legal and economic detriment that applies to a non married couple in a long term relationship due to the fact that community property benefits and various statutes would not normally apply to them.
It is important to note that many of the benefits of community property (such as full stepped up basis on appreciated assets if one inherits jointly held property, etc.) do NOT apply to domestic partners. Nevertheless, as seen below, the benefits available for registered domestic partners in California can be significant.
WHAT ARE REGISTERED DOMESTIC PARTNERS?
In California the Family Code defines Domestic Partners as, "…two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring."
To be officially “registered” as domestic partners with the State of California, certain criteria must be me:
1. Both persons must have a common residence.
2. They must agree to be responsible for each other's basic living expenses.
3. Neither person can be married or a member of another domestic partnership.
4. The two persons cannot be related by blood.
5. Both persons must be at least 18.
6. Both persons must either be members of the same sex, or over age 62 if they are of opposite
genders.
7. A Declaration of Domestic Partnership must be filed with the California Secretary of State.
WHAT ARE THE RIGHTS OF REGISTERED DOMESTIC PARTNERS?
1. A Registered Domestic Partner can be a beneficiary of a trust or will, can serve as an executor of a will, or can serve as a trustee of a trust established by the other partner. The Registered Domestic Partner also has the right to serve as the administrator of an estate if a probate is required. See our Article on Wills and Trusts.
2. Starting on July 1, 2003 (as provided by Probate Code section 6401), a Registered Domestic Partner will have the right to inherit from the other partner if that partner did not have a will or trust, as follows:
A. If the deceased partner was not survived by children, grandchildren,
parents, siblings, or descendants of a deceased sibling, the Registered
Domestic Partner will inherit the entire estate.
B. If the deceased partner was survived by one child, or the
descendants of a deceased child, or parents, or siblings, the Registered
Domestic Partner will receive one-half of the estate.
C. If the deceased partner was survived by more than one child, or one
child and the descendants of one or more deceased children, or the
descendants of two or more deceased children, the Registered Domestic
Partner will receive one-third of the estate.
The reader should review our article on Intestate Succession in California.
3. A Registered Domestic Partner has the same rights to participate in a conservatorship proceeding as a married person. Registered Domestic Partners are also entitled to notice of conservatorship proceedings, and are allowed to take part in proceedings to establish a conservatorship.
4. The California statutory will has been revised to include Registered Domestic Partners as beneficiaries and executors.
5. Registered Domestic Partners have been given the same rights to make health care decisions for a partner as a spouse would make for another spouse.
6. Registered Domestic Partners can be treated the same as a spouse for purposes of filing state income tax returns.
7. Registered Domestic Partners have rights to medical coverage, sick leave, and disability benefits under public employee and private plans.
8. Registered Domestic Partners can sue for negligent infliction of emotional distress and for wrongful death of a domestic partner for conduct occurring after January 1, 2001.
0. Registered Domestic Partners have the same rights as a step-parent to participate in adoptions of a child of a partner. Rights of a Registered Domestic Partner if the partnership is revoked:
1. Unless the will provides otherwise, a bequest to the former partner is revoked.
2. Unless the will provides otherwise, a nomination of the former partner as an executor, trustee,
conservator, or guardian is revoked.
3. When the partnership is revoked, provisions of the will are interpreted as though the former
domestic partner had died before the testator of the will.
CONCLUSION:
Any couple considering registering with the Secretary of State to obtain the benefits above should consult both with their CPA and their family attorney as to the various tax advantages and legal ramifications for estate planning of that decision. Most of the time the benefits are substantial though it must be remembered that the tremendous advantages of community property as a form of ownership (as opposed to joint tenancy or tenancy in common) are still not obtained. Please read our article on Joint Tenancy for some of the pitfalls of owning property in that manner.
It must also be recalled that this registration is a public document and, effectively puts in the hands of government and anyone seeking access to those records proof of the personal lifestyles of the person registering. While this may not seem a problem in certain locales and certain times, these public records will last forever and one should recall that if one moves to Boise, Idaho or Bolivia such records may prove to be a problem at a later time. It is a personal decision to be carefully weighed before the documents are filed.
As one client put it, “I don’t even like the fact that the government knows my social security number. I have no interest in telling them how I live or who I live with.”
Yet the number of “gay marriages” which are, after all, public statements of commitment clearly indicates a contrary opinion held by many and the economic benefits of a registered domestic relationship can not be denied.
Ultimately, each person must make his or her own decision. Perhaps Proust had the best insight when he wrote in the 1890s, “All of our final resolutions are made in a state of mind that is not going to last…”