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California Domestic Partners: How to Become One and What is the
Legal Effect?
INTRODUCTION:
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…”
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