Eugene E. Kinsey, Attorney at Law

323 Main St., 2nd Floor, Seal Beach, CA 90740

CALIFORNIA DOMESTIC PARTNERSHIP LAW

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General Information Re Dissolution Of Domestic Partnerships In California:

Certain nonmarital cohabitants are eligible under California law to register as "domestic partners" (Ca Fam § 297 et seq.). "Domestic partners" are defined by the Code as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." [Ca Fam § 297(a)]

As explained below, registering a "domestic partnership" does not make the partners "married" or "spouses" under California law. But the domestic partners nonetheless acquire a broad range of statutory rights and privileges. Effective January 1, 2005, the rights and obligations of registered domestic partners under California law are virtually identical to the rights and obligations of spouses.

The California Domestic Partner Rights and Responsibilities Act of 2003 effective 1/1/05, grants registered domestic partners the "same rights, protections, and benefits," and imposes upon them the "same responsibilities, obligations, and duties" as are granted to and imposed upon spouses under the law, "whether they derive from statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law."

A "domestic partnership" is established in California after January 1, 2005 when both persons file a Declaration of Domestic Partnership with the Secretary of State and, at the time of filing, all of the following requirements are met:

    • Both persons must have a "common residence"--i.e., they must share the same residence.

    • Neither person can be married or a member of another domestic partnership.

    • The two persons cannot be related by blood in a way that would prevent them from being married to each other under California law.

    • Both persons must be at least 18 years of age.

    • The persons must be either: a) members of the same sex or, b) members of the opposite sex, at least one of whom is over age 62 and eligible for social security old-age benefits.

    • Both persons must be capable of consenting to the domestic partnership.

    • If either person previously filed a Declaration of Domestic Partnership with the Secretary of State, it must be terminated pursuant to Ca Fam § 299 before the new domestic partnership may be established.

Two persons eligible to become domestic partners (above) may complete and file with the Secretary of State a "Declaration of Domestic Partnership."

Rights and obligations of domestic partners include:

Right of domestic partners to use stepparent adoption procedures. Registered domestic partners can use the same adoption procedures used by stepparents. These procedures enable one partner to adopt the other partner's child or children, so that both partners have a legally protected relationship to the couple's child or children.

Custody & Visitation Of Children Of Domestic Partners. After January 1, 2005, if parents are registered domestic partners when a child is born, the law assumes that the domestic partners are parents. However, since this law is new and unsettled, same sex parents should get legal advice to make sure that the parentage is clear.

Right to make medical decisions for your domestic partner. A registered domestic partner has the same right as a spouse to make medical decisions for his or her partner if the partner becomes mentally or physically incapacitated.

Hospital visitation rights of domestic partners. Registered domestic partners have the right to visit one another in the hospital.

Right to file for state disability benefits on behalf of a disabled domestic partner. A registered domestic partner can file claims for state disability benefits on behalf of a partner who is eligible for benefits but too incapacitated to file a claim for them.

Right to be appointed conservator and to make legal & financial decisions for an incapacitated domestic partner. If a registered domestic partner becomes incapacitated and needs a court-appointed conservator to handle her finances and other personal matters, then her partner is given the same priority in being named the conservator as a spouse. The partner also has the right to object to the appointment of a conservator.

Right to inherit if a domestic partner dies without a will. A surviving registered domestic partner will have the same priority as a surviving spouse to inherit a specified share of a partner's separate property if the partner dies without a will. A surviving registered domestic partner will not, however, have the same rights as a surviving spouse to community property. This law will go into effect on July 1, 2003.

Right to sue for wrongful death and infliction of emotional distress of a domestic partner: When a partner is killed or injured. If a registered domestic partner is killed due to the negligence or wrongdoing of another person, her partner can bring a wrongful death suit to recover for lost financial support and companionship. A registered domestic partner can bring a suit for the infliction of emotional distress if she witnesses her domestic partner being physically harmed by another person.

Ability to use form wills and right to automatic appointment as administrator of a domestic partner's estate. California has amended the official forms for making simple wills to allow registered domestic partners to check a box leaving their estates to their partners. A registered domestic partner also has the same priority as a spouse in being appointed to be the administrator of a partner's estate after his or her death.

Right to draft a will or trust for a domestic partner. Registered domestic partners are included in the exceptions to the law that prohibits making a transfer through a will or trust to the person who drafted the will or trust.

Right to paid leave to care for seriously ill domestic partner or a domestic partner's child. A new family temporary disability insurance program will provide up to 6 weeks of wage replacement benefits to workers who take time off work to care for a seriously will child, spouse, parent, domestic partner, or to bond with a new child.

Domestic partner's unemployment insurance. If a registered domestic partner must quit her job and relocate to accommodate her or his partner's job, she or he will be eligible to collect California unemployment benefits on the same basis as a spouse who relocates under the same circumstances.

Right to use sick leave to care for a domestic partner or a domestic partner's child. If an employer has a policy permitting employees to use sick leave to care for spouses and children, the employer is required to provide equal treatment to domestic partners by permitting a registered domestic partner to use sick leave to care for his or her partner or partner's child.

Domestic partner health insurance. The new law does NOT require employers to offer domestic partner benefits. However, it does require insurance companies that provide employers with coverage of employees' spouses to offer health insurance coverage for employees' domestic partners and their children on the same terms. The law also continues to permit government employees to obtain health insurance benefits for their registered domestic partners, a provision which has been in place since January, 2000, when the statewide domestic partnership law first went into effect.

Right to continued health insurance coverage for domestic partners and children of deceased state employees and retirees. If a state employee or retiree dies, his or her domestic partner and the children of the domestic partner will be eligible for continued health insurance coverage if the surviving domestic partner has been enrolled in the state health insurance plan.

Right to death benefits and survivor's allowances for surviving domestic partners of county employees in selected counties. The counties of Los Angeles, Marin, San Francisco, San Mateo, and Santa Barbara have the authority to provide death benefits and survivor allowances to surviving domestic partners of county employees. With the exception of San Francisco, the county board of supervisors in each of these respective counties must pass an authorizing resolution before these benefits will be available.

Right to live with your domestic partner in senior citizen housing developments. Registered domestic partners are included in the definition of persons who are qualified to secure housing in specially designed accessible housing for senior citizens.

Employer provided health insurance benefits for registered domestic partners will no longer be taxed as income by the State of California. They will continue to be taxed as income, however, by the federal government.

Beginning January 1, 2005, registered domestic partnership status may be terminated (other than by death of one of the partners) only as specified in Ca Fam § 299. In many cases, a court proceeding will be required, under the law governing marriage dissolution, nullity and legal separation.

Some domestic partnerships may be terminated without judicial intervention by filing a prescribed Notice of Termination of Domestic Partnership with the Secretary of State. A registered domestic partnership is eligible for termination by way of the nonjudicial "summary" procedure only if all of the conditions specified below exist at the time the partners file the Notice of Termination of Domestic Partnership.

    • The Notice of Termination of Domestic Partnership must be signed by both domestic partners.

    • There are no children of the relationship 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.

    • The domestic partnership is not more than five years in duration.

    • Neither party has any interest in real property, other than the lease of a residence occupied by either party that (i) does not include an option to purchase, and (ii) terminates within one year from the date of filing of the Notice of Termination of Domestic Partnership.

    • There are no unpaid obligations in excess of the amount permitted by Ca Fam § 2400(a)(6), as periodically adjusted by § 2400(b) (currently $4,000), incurred by either or both parties after registration of the domestic partnership, excluding any unpaid automobile obligation.

    • The total fair market value of community property assets (excluding encumbrances and automobiles), including any deferred compensation or retirement plan, is less than the amount specified in Ca Fam § 2400(a)(7), as periodically adjusted by § 2400(b) (currently $32,000), and neither party has separate property assets (excluding encumbrances and automobiles) in excess of that amount.

    • 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.

    • The parties waive any rights to support by the other domestic partner.

    • 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.

    • Both parties desire that the domestic partnership be terminated.

Under the summary procedure, the domestic partnership is terminated as of six months after the date the Notice of Termination of Domestic Partnership is filed with the Secretary of State, so long as neither party properly revoked the Notice of Termination before then.

Unless the parties qualify for and elect to utilize the summary termination by notice procedure, domestic partnership status may be terminated or otherwise altered (other than by death) only through superior court proceedings for dissolution, nullity or legal separation.

The dissolution or nullity of a domestic partnership and the 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 spouses in a marriage dissolution, nullity or legal separation proceeding. As a result, all the rights and obligations that attach in marital status proceedings apply in the parallel domestic partnership status proceedings. These rights and obligations include (but are not limited to) the following:

    • An equal division of the partners' community property estate;

    • Joint title presumptive community property (Ca Fam § 2581) and Ca Fam § 2640 reimbursement rights;

    • Community estate and separate property debt liability;

    • Spousal support (Ca Fam § 4300 et seq.), including consideration of the mandatory spousal support factors;

    • Automatic temporary restraining orders;

    • Child custody, visitation and child support adjudication with respect to a child of the partnership or of either partner under the law governing custody, visitation and child support adjudication with respect to a child of a marriage or of either spouse.

 

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