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:
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.
(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
(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
(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
(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
(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.
(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
(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.
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
(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
(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
(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
(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
(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
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.
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.
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.
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
(2) One-half of the intestate estate in the following cases:
(A) Where the decedent leaves only one child or the issue of one
(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
This 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
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 the state has written one for you!
Typical Estate Planning Documents:
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
(Living) Trust - Serves the function of a Last Will but in
addition avoids probate, which can save your estate many thousands of dollars.
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.
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.
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
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