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
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
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
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
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
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
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
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
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
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)
An equal division of the partners'
community property estate;
Joint title presumptive community
property (Ca Fam § 2581) and Ca Fam § 2640 reimbursement
Community estate and separate property
Spousal support (Ca Fam § 4300
et seq.), including consideration of the mandatory spousal
Automatic temporary restraining
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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