MILTON BERRY SCOTT
Attorney at Law
Walnut Creek, California

NEW CALIFORNIA DOMESTIC PARTNERSHIP LAW

In 2003 the California legislature passed a new all encompassing act which gave the registered partners of the same sex many of the benefits previously only afforded to husband and wife. The law, which took effect on January 1, 2005, applies only to parties of the same sex or to a different-sex couple if one of the parties is over age 62 and meets certain requirements under the federal Social Security Act.

Eligibility

To be covered by this act the couple must file a "Declaration of Domestic Partnership" with the California Secretary of State. Registering in another state or country or going through a civil union or marriage will not qualify in California. The couple must specifically register in this state. If a couple filed a registration statement with the California Secretary of State under former California law prior to the recent change, they are automatically covered by the new law.

To register, a form is completed, signed by both partners, notarized and filed with the Secretary of State, along with the filing fee of $10.00. There are no California residency requirements. The filed Certificate of Domestic Partnership is a public record and available for review by anyone although the records are not currently on line or available through the internet.

To be eligible to register the couple must either be of the same sex or meet the requirements for a different-sex couple, be 18 years of age or older, both share a common residence, not be married or in another registered domestic partnership, not be related by blood which would prevent them from being married to each other if they were of the opposite sex, and consent to have the California courts take jurisdiction to dissolve the partnership if either partner wishes to do so.

Benefits

The members of a registered domestic partnership in California have many of the rights, protections, and benefits of a married person but are also subject to the same responsibilities, obligations, and duties under the law, with some exceptions. These rights are listed in California Family Code section 297.5.

Estate planning benefits

Once registered under the act, the partners have the following rights at the death or incapacity of a partner:

1. Upon the death of one partner the surviving partner automatically inherits a portion of the deceased partner's assets, if he or she died without a will.
2. If one partner dies, the surviving partner has priority to act as administrator of the estate if the partner died without a will.
3. A non-incapacitated partner has priority to be appointed as conservator of the person and estate if the other partner becomes incapacitated and has not nominated another person as conservator.
4. The partners have equal management and control of property acquired by them during the partnership.
5. The surviving partner can handling funeral and burial arrangements at death if no written authorization has been provided by the deceased partner.

Rights not available

The registered partners have no rights under federal law such as filing a joint income tax return, having a statutory right to be named beneficiary under a pension plan, or being allowed unlimited assets under federal estate tax law or other benefits available to a husband and wife.

California does not allow the filing of a joint income tax return by registered partners.

The above recognized rights are not generally available or recognized in other states.

Termination of partnership

If either partner wishes to terminate a partnership it may be done but is handled similar to a divorce between married couples, with the a court dividing the assets of the partnership, ordering support of a partner, awarding custody and rights with regard to any children of the partnership, directing payment of child support for any children of the partnership, and arranging other matters.

There is a simplified procedure for the filing of a Termination of Domestic Partnership with the California Secretary of State without court intervention if the partnership was formed for less than five years, there are no children born to a partner or adopted by the partners during the partnership, there is no real estate owned by the partnership, and the total assets accumulated during the partnership are not more than $32,000, excluding automobiles.

Conclusion

The above is a very simple explanation of a complex set of laws which establishes rights and obligations for same sex couples who wish to register as domestic partners under California law. Anyone registering a domestic partnership, terminating a domestic partnership, or doing estate planning for partners should consult an attorney who is knowledgeable in this area.