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MCLE Featured Article: Partners in Law
California's new Domestic Partnership Registration Act may aid same-sex partners in providing a legal basis for their life relationships
By Kitty Mak
Kitty Mak practices family law in Los Angeles and is a member of the Los Angeles County Bar Association's Sexual Orientation Committee. Her e-mail address is email@example.com. She thanks Jennifer Stump, Jon Davidson, Meredith Hardy, and Honey Amado for their assistance.
During the 1999-2000 session, the California Legislature passed the Domestic Partnership Registration Act. Domestic partnership is not marriage for same-sex couples. It does not approach the stature of marriage in terms of the rights and obligations it offers. It is, however, a step forward for lesbian and gay couples who wish to gain public recognition for their partnerships.
The Population Reports of the U.S. Census Bureau1 for 1998 estimated that there were approximately 1,674,000 same-sex partnerships in the United States.1 Of these, 809,000 were lesbian couples and 865,000 were gay couples.2 In 1998, 167,000 same-sex couples throughout the United States reported having children ages 15 years or younger living with them.3 Most significantly, 20 percent of all lesbian couples and 28 percent of all gay couples in the 1998 reports were living in California.4
While the Domestic Partnership Registration Act brings increased social recognition and benefits for same-sex couples in California, domestic partners must rely on contract law to acquire a fuller scope of rights and protections. Still, contractual vehicles will only provide a fraction of the rights conferred by civil marriage.
The Domestic Partnership Registration Act is codified at Family Code Sections 297 through 299.6, Government Code Section 22867, and Health and Safety Code Section 1261. The Family Code provisions govern registration, termination, property rights, joint liability for debts, and preemption. (See "How to Register and Terminate a Domestic Partnership," page 40.) Government Code Section 22867 provides for health insurance coverage for the domestic partners of state employees.5 Health and Safety Code Section 1261 creates a right to hospital visitation by domestic partners.6
Family Code Section 297(a) defines "domestic partnership" as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." In order to qualify to form a domestic partnership, both persons must:
1) Have a common residence.7
2) Agree to be jointly responsible for each other's basic living expenses incurred during the domestic partnership.8
3) Not be married and not be a member of another domestic partnership.9
4) Not be related by blood "in a way that would prevent them from being married to each other in this state."10
5) Be at least 18 years old.11
6) Be of the same sex or over 62 years old and eligible for Social Security.12
7) Be capable of consent.13
Family Code Section 297(d) defines "basic living expenses" as:
[S]helter, utilities, and all other costs directly related to the maintenance of the common household of the common residence of the domestic partners. It also means any other cost, such as medical care, if some or all of the cost is paid as a benefit because a person is another person's domestic partner.
No published cases have addressed the new Domestic Partnership Registration Act or domestic partnership dissolution. Consequently, the definitions of "other cost" and "benefit" are not clear. An argument might be made that these and other terms should be defined as they are in marital dissolution cases.
Rights and Obligations
The provisions of the Domestic Partnership Registration Act that are codified in the Family Code offer limited rights and obligations. First, Family Code Section 297(b)(2) imposes the mutual support obligations for basic living expenses. Thus one domestic partner must cover the mortgage or rent, the utilities, and other basic necessities for the functioning of the home if the other partner is unable to do so. This duty continues until the partnership is dissolved. A financially superior partner probably would have to pay rent for his or her unemployed partner while the two are living apart pending dissolution of the partnership. If one partner's employer provides health insurance for the employee's domestic partner, then the employed partner has the duty to maintain that insurance until the domestic partnership is dissolved. Again, courts have not yet interpreted the act's provisions.
Second, Family Code Section 297(e) states that domestic partners are jointly responsible to pay back all living expenses incurred during the partnership if a creditor relied on the partnership as the basis for providing credit and both partners agreed to be jointly responsible. This obligation for domestic partners restates the law that applies to any two persons who guarantee to repay a debt, whether they are in a domestic partnership or any other kind of relationship.
Third, Family Code Section 299.5(e) states that domestic partners share a proportional ownership interest in jointly titled property acquired during the partnership, unless specified otherwise in a written instrument. This also is not a right or obligation unique to domestic partners. Rather, this is simply a restatement of the law that governs jointly titled property.
Domestic partnership, like marriage, does not change the ownership interest in property owned before the union.14 Unlike marriage, however, domestic partnership does not create an interest in property acquired during the relationship with money earned during the partnership. This is only one of many ways that domestic partnerships are unlike marriages.
In California, a local municipality15 may retain or adopt ordinances, policies, or laws that offer more rights to domestic partners than those offered by state law.16 For example, the rent stabilization ordinance of the city of West Hollywood prohibits the eviction of a tenant with a lease providing for a one-person occupancy when the tenant's registered domestic partner moves in with the tenant. Similarly, the ordinance prohibits any increase in a tenant's maximum allowable rent as a result of a tenant's registered domestic partner moving in with the tenant.17 West Hollywood also grants hospital and jail visitation rights to domestic partners equivalent to the rights that are granted to married spouses.18 These rights are for those who are registered as domestic partners under West Hollywood's domestic partnership law and may not apply automatically to those registered under the state law.
Local municipalities also may impose more duties upon third parties regarding domestic partners.19 The additional local rights may be conditioned upon the domestic partners' agreeing to assume additional obligations.20
If domestic partners move to another state,21 it is unclear what legal effect their status as domestic partners in California will have. It is not likely that another state will grant full faith and credit to a California law that provides benefits for persons in domestic partnerships. At present this issue has not been litigated. Also, domestic partnership registration in California does not create any legal right to federal benefits, including Social Security, Medicare, tax return filing status, and immigration policies regarding partners outside the United States.
Existing law recognizes marriage as an economic unit and seeks to protect the economically weaker spouse by such means as ordering spousal support upon dissolution.22 Domestic partnership registration, by contrast, does not recognize the formation of an economic unit. For domestic partners, all economic ties are severed upon dissolution, except for debts incurred for basic living expenses during the partnership.23
The Domestic Partnership Registration Act does not mention postdissolution partner support. If domestic partners wish to provide for the equivalent of spousal support, they may do so by entering into a private contract.24
Marriage offers economic protection to the dependent or homemaking spouse. A stay-at-home spouse who chooses to nurture the career of the providing spouse, provide full-time care to the children of the marriage, and/or pursue further education acquires property rights and insurance protection along with the financial support of the providing spouse and has the right to seek continuing support if the marriage ends in dissolution. These rights and protections are not readily available to domestic partners by virtue of their partnership. In the insurance realm, for example, domestic partners must privately contract with their employers for benefits that apply to their partners, assuming such benefits are available at all.25 An exception exists for California state employees, however. A California state employee's domestic partner is eligible to receive health insurance benefits if the partners are registered under the act.
Property and Debt
Unless domestic partners create property rights in each other's earnings through mutual agreement, all real and personal property acquired during the partnership remains the separate property of each partner.26 Community property and quasi-community property laws applicable to marriages do not apply to domestic partnerships.27
Domestic partners must enter into cohabitation agreements to contract for property rights. Most courts will enforce express property agreements between unmarried committed partners and some courts will enforce contracts that are implied from the conduct of the partners, provided that valuable and lawful consideration exists. Sex, though valuable, is not considered to be lawful consideration.28
Property agreements between domestic partners can address a myriad of issues, including:
Domestic partners also can alter 1) their rights in personal property by oral agreements, 2) their rights in real and personal property by taking title via joint ownership, and 3) their joint financial investments by written documents. And certainly the partners can make gifts of personal property to each other.
Spouses are responsible for debts incurred by either spouse during the marriage30 for any purpose so long as the creditor relied on the community as a basis for the credit.31 Domestic partners, however, share in this joint responsibility for debts incurred during the partnership for basic living expenses only. For example, if one domestic partner borrowed funds in his or her name only during the partnership, whether or not the creditor can sue the other partner for repayment depends on whether the borrowed funds were used to pay for living expenses. Existing law governing debts incurred during marriage provides that a creditor may not reach the separate property of a spouse for debt incurred by the other spouse during the marriage, even if the spouse consented to acquiring the debt.32 Spouses, however, are personally liable for debt incurred by either spouse for the "necessaries of life" while living together33 and while living separately.34 A court has defined a "necessary of life" as something required to sustain life.35 Family Code Section 914(a)(2) abolished the "station in life" test for determining what is a necessary of life.
In contrast, domestic partners will only be jointly responsible for a loan if they have both signed guarantees of joint responsibility to repay the loan. Therefore, existing law governing guarantees is controlling.
Custody and Visitation
The Domestic Partnership Registration Act does not mention children. The Family Code and case law govern maternity,36 paternity,37 custody,38 and visitation.39
Marriage, or attempted marriage, creates the presumption that the man is the father of a child born within that marriage40 or attempted marriage.41 Because same-sex couples cannot marry or attempt to marry, no presumption to protect the nonbiological parent exists with regard to the children of same-sex couples. Therefore, one common remedy for the nonbiological parent is second-parent adoption.
Some counties, including San Francisco and Los Angeles, allow second-parent adoption, which is a powerful vehicle used by the nonbiological same-sex parent to legitimize a parent-child relationship.42 According to attorney Jon Davidson of the Lambda Legal Defense and Education Fund, Inc., lesbians and gays could become second parents under the general adoption statute,43 a position successfully argued by lesbian and gay civil rights organizations. Second-parent adoption applies to children from prior relationships and those conceived during the partnership.
Second-parent adoption is no longer the only option for nonbiological parents, however. Under the doctrine of "intended parentage," nongestational coparents have obtained prebirth declarations of parentage. The doctrine of intended parentage states that legal parents include any man or woman who causes a child's conception through his or her consent to the use of medical reproductive technology such as donor insemination.44 In 1998, a man and a woman who consented to the use of donor insemination to impregnate a surrogate mother with donated sperm and a donated egg used this theory in California to establish parental rights.45 Because both the man and the woman individually intended to become a parent by using donor insemination and the child would never have been born without their participation, the court determined that each was an "intended parent" and therefore a lawful parent of the child.46
Upon dissolution of the domestic partnership, the children of the partnership may be left in a financially precarious situation. For example, if their ties with their nonbiological parent are severed by their custodial biological parent, by the court, and/or by the choice of the nonbiological parent, the children risk losing all financial support provided by the nonbiological parent. Also, if the children of one partner qualified as dependents on the health insurance policy offered by the nonbiological parent's employer (insurance coverage depends entirely on what the employer chooses to offer), these children may lose their dependency status once the partnership is dissolved and/or they lose the financial support of the nonbiological parent.
While the law favors children maintaining frequent and continuing contact with both parents after divorce, the Domestic Partnership Registration Act creates neither custody nor visitation rights for the nonbiological parent upon dissolution of the partnership. Some courts, however, have granted visitation or custody rights to the nonbiological partner who has not adopted the child. In California, the "best interest of the child" is the standard for the judicial determination of custody.47 This standard may require that visitation rights be granted to psychological parents.48 In In re Guardianship of Martha M., the court granted visitation of a child to the "psychological father"—a close friend of the minor's mother, who had committed suicide.49
Illness and Death
When a domestic partner is ill or incapacitated, healthcare professionals cannot legally look to the patient's partner for decisions on behalf of the patient without a document such as an executed durable power of attorney for health care50 that delegates decision-making authority to the patient's partner or another adult or an advance healthcare directive with similar instructions.51 These tools allow domestic partners to designate each other to make decisions in the event of one partner's incapacitation.52 Without a durable power of attorney or other appropriate medical directive, hospitals and courts will look to the incapacitated patient's next of kin to make medical decisions on behalf of the incapacitated partner.
A "living will," which is another term for a medical directive, is a statement directing the healthcare provider about what life-sustaining measures, if any, will be desired when the signatory is incapacitated. A general durable power of attorney allows partners to designate each other to make legal and financial decisions on behalf of one another. Some powers of attorney are valid as soon as they are executed, while others take effect only when the principal becomes incapacitated.
Domestic partners can draft reciprocal wills to leave their estates to each other. Without wills, an estate will pass by intestacy, but the intestacy laws do not recognize a same-sex partner as an heir, so the surviving partner would receive nothing.53
As an alternative, domestic partners can set up an inter vivos trust, which may be preferable to a will because 1) established and running trusts are often harder to contest than wills, and 2) trusts are more private because there are no public records. Still, domestic partners may need a pour-over will (or reciprocal pour-over wills) to ensure that any asset not transferred to the trust prior to death will still be added to the trust at death.
California law allows an adult to adopt another adult who is at least 10 years younger.54 Historically, same-sex couples used this tool to ensure that the younger surviving partner would take the decedent partner's estate under intestacy if the will should fail for any reason. However, this arrangement exposes the partners to possible prosecution for incest. As California law made will contests increasingly more difficult, wills and trusts appear to be the preferred means to carry out estate plans.
When a domestic partner dies, the state does not look to the surviving partner as the decision maker for the decedent. Unlike the surviving spouse of a marriage, the surviving partner of a domestic partnership:
- Does not have the right to dispose of the body of his or her deceased partner.55
- Does not have priority to be the administrator of the intestate estate.56
- Does not have priority to be the conservator or guardian.57
- Has no right to receive a family allowance from the decedent's estate.58
- Has no right to probate homestead in the decedent's estate.59
- Is not treated as an heir or a next of kin when estate transfers by intestacy.60
- Is not treated as a pretermitted heir when omitted from a will.61
- Has no right to a small estate set-aside on the death of the partner.62
These are just a few of the rights available to married spouses but unavailable to domestic partners. Domestic partnership law creates no rights in the surviving domestic partner. Same-sex couples must use tools such as reciprocal wills or contractual vehicles to obtain these rights.
What Contracts Can—and Cannot—Provide
Domestic partners, and any other same-sex or opposite-sex couples, can use property agreements and private contracts to govern the rights and obligations within their relationship.63 Still, there are limits to what couples may be able to accomplish via contract. Private contracts have no legal effect on government-conferred rights and obligations such as tax benefits, parentage, custody and visitation arrangements, and child support obligations.
Parties can contract to:
- Characterize earnings during the partnership according to community property law.
- Designate equal management and control of property acquired during the partnership.
- Create a right to temporary support during pendency of dissolution of their partnership.
- Create a right to support after dissolution of the partnership.
- Create a right to reimbursement for expenses paid to educate a partner during the course of the partnership.
- Permit partners to authorize an autopsy and dispose of the body of a deceased partner.
- Among other things, private contracts cannot be used to:64
- Permit a partner to inherit 100 percent of the community property and 50 percent of the separate property when a partner dies intestate.
- Appoint one partner to be the administrator of the other partner's intestate estate.
- Create a wrongful death cause of action.65 (This is being challenged now in a case filed by Sharon Smith, the domestic partner of the late Diane Alexis Whipple, who was mauled by their neighbors' dog in the hallway outside their San Francisco apartment.66 Assembly Bill 25, which was introduced by Assemblywoman Carole Migden, would extend domestic partnership rights to include standing to sue for the wrongful death of a partner.67)
- Create a cause of action on behalf of domestic partners for the negligent infliction of emotional distress.68
- Permit domestic partners to file joint tax returns.69
- Allow domestic partners to obtain gift and estate tax exemptions available to married couples.70
- Provide domestic partners with a right to benefit from the marital estate tax.71
- Create an automatic right to receive unemployment benefits when a partner voluntarily resigns from employment and chooses to relocate with his or her partner.
- Create a presumption of paternity if a man's domestic partner fathers a child.72
- Allow one domestic partner to be the guardian of his or her injured or ailing partner.
- Permit one partner to be the appointed conservator of an incapacitated partner.
- Create a right to claim the marital privilege or the communication privilege.73
- Provide partners with a 12-week unpaid leave from work for a sick partner or child.
- Allow a domestic partner to visit his or her partner in a state correctional facility.74
Same-sex couples can easily purchase joint policies for homeowner's insurance, renter's insurance, and auto insurance. They may, however, experience more difficulties obtaining joint mortgages or lines of credit to finance purchases of homes or cars.
A same-sex couple buying a house together will be required to have homeowner's insurance. If the home is purchased in only one name, the other partner should take out renter's insurance for his or her personal belongings.75
Same-sex couples can purchase a joint renter's insurance policy through most insurance companies. Insurance companies insure the property and are not concerned with who lives there. If the company refuses to provide a joint policy, the couple should obtain two separate policies with the same company so that one company cannot try to shift the risk to the other company.76
If both partners own cars separately, they may have trouble getting one insurance policy. Most companies will write each partner a separate policy for each car and name the other person as a secondary driver. Two separate policies, however, are more expensive than one joint policy.77
In California, civil marriage remains the only social institution offering a comprehensive array of legal rights as well as the social status provided by marriage. The Domestic Partnership Registration Act, with all its benefits, does not change this fact. By contrast, civil unions in Vermont and, to a lesser extent, reciprocal beneficiary status in Hawaii come closer to offering the same legal rights that are provided by marriage.
AB 25, which is currently pending in the California Legislature, would grant domestic partners significant and important rights in addition to the ones they now have. The bill provides for a cause of action for the wrongful death of a domestic partner, a cause of action for the negligent infliction of emotional distress, inheritance under intestacy, and a right to stepparent adoption (as an alternative to the stricter, more invasive second-parent adoption).78 n
1. "Same-Sex Couple Marriage: A Family Policy Perspective," 9 Virginia Journal of Social Policy and the Law 291 (2001), citing 1998 Population Reports of the U.S. Census Bureau. The U.S. Census Bureau makes an annual report based on a representative sample of the population.
5. Gov't Code §22867 states: "It is the purpose of this article to provide employers the ability to offer health care coverage through this part to the domestic partners of their employees and annuitants."
6. Health and Safety Code §1261 states in pertinent part: "(a) A health facility shall allow a patient's domestic partner, the children of the patient's domestic partner, and the domestic partner of the patient's parent or child to visit."
7. Fam. Code §297(b)(1).
8. Fam. Code §297(e).
9. Fam. Code §297(b)(3).
10. Fam. Code §297(b)(4).
11. Fam. Code §297(b)(5).
12. Fam. Code §297(b)(6).
13. Fam. Code §297(b)(7).
14. Fam. Code §299.5(c).
15. A number of municipalities in California have domestic partnership registries. On January 5, 2000, these municipalities included: Berkeley, Davis, Laguna Beach, Long Beach, Los Angeles, Oakland, Palo Alto, Petaluma, Sacramento, San Francisco, Santa Barbara, and West Hollywood. For a list of municipalities with domestic partnership registries in other states, see http://www.ci.west-hollywood.ca.us.
16. Fam. Code §299.6(c).
17. See http://www.weho.org.
21. California and Hawaii were the only states with domestic partnership registries on January 5, 2000. See http://www.ci.west-hollywood.ca.us.
22. Fam. Code §4330.
23. Fam. Code §297(e).
24. Marvin v. Marvin, 18 Cal. 3d 660 (1976).
25. Chuck Colbert, Gays, Lesbians Make Rapid Gains in Workplace Equality, L.A. Daily J., May 30, 2000. The number of employers who offer health insurance to domestic partners skyrocketed in the United States in the last decade, from fewer than two dozen in 1990 to 3,402 in March 2000. See id.
26. Fam. Code §299.5(d).
28. Marvin v. Marvin, 18 Cal. 3d 660 (1976) (When cohabitating adults contract with each other regarding their property rights, the contract is enforceable if the consideration is not expressly or inseparably based on sexual services.). See also Jones v. Daly, 122 Cal. App. 3d 500 (1981)(If a party promises to be a lover, homemaker, and cook for a live-in partner in exchange for the partner's lifelong support, the contract is unenforceable.). But see Whorton v. Dillingham, 202 Cal. App. 3d 447 (1988) (A palimony agreement is enforceable when a partner promises to provide homemaking services in exchange for support by the other partner.).
29. Hayden Curry et al., A Legal Guide for Lesbian and Gay Couples 6/5 (Nov. 1999) (hereinafter Curry).
30. Spouses are not responsible, however, for each other's student loans incurred during marriage.
31. Gudelj v. Gudelj, 41 Cal. 2d 202 (1953) (When a lender relies on a marriage as a basis for credit, there is a rebuttable presumption that the credit acquired during the marriage is community property.). See also Fam. Code §§2622, 2551. Spouses and domestic partners alike can enter into an agreement characterizing a loan as a separate debt of either party.
32. Fam. Code §913.
33. Fam. Code §914.
34. Fam. Code §4302. See Ratzlaff v. Portillo, 14 Cal. App. 3d 1013 (1971) (A creditor reaches the separate property of the nondebtor spouse only for debts incurred for the "common" necessaries of life of the other spouse.).
35. Ratzlaff, 14 Cal. App. 3d 1013.
36. Fam. Code §7610(a).
37. Fam. Code §§7610(b), 7611, 7611.5, 7612.
38. Fam. Code §§3010 et seq.
39. Fam. Code §§3100 et seq.
40. Fam. Code §7611(a).
41. Fam. Code §7611(b).
42. See Fam. Code §§8500 et seq. The general adoption statute does not expressly forbid a same-sex partner from becoming a parent while the other parent retains his or her parental rights.
44. See http://www.familypride.org.
45. In re Marriage of Buzzanca, 61 Cal. App. 4th 1410 (1998).
47. Devine v. Devine, 213 Cal. App. 2d 549 (1963).
48. In re Guardianship of Martha M., 204 Cal. App. 3d 909 (1st Dist. 1988).
50. These are also known as healthcare proxies. Any hospital receiving federal funding and most state medical associations provide healthcare directive forms free of charge.
51. See Marshall S. Zolla and Deborah Elizabeth Zolla, Lasting Wishes, Los Angeles Lawyer, Dec. 2000, at 42.
52. Curry, supra note 29, at 4/3.
53. Jennifer K. Robbennolt and Monica Kirkpatrick Johnson, Legal Planning for Unmarried Committed Partners: Empirical Lessons for a Preventive and Therapeutic Approach, 41 Ariz. L. Rev. 417 (Summer 1999).
54. Fam. Code §§9300(a), 9320(a).
55. In Stewart v. Schwartz Brothers-Jeffer Memorial Chapel, Inc., 19 Fam. L. Rptr. 1544 (1993), the deceased did not leave written instructions as to how his body should be disposed. His lover brought a complicated and expensive lawsuit to gain control over the body from the deceased's biological family—and won.
56. Prob. Code §8461.
57. Prob. Code §8769.
58. Prob. Code §6540.
59. Prob. Code §6521.
60. Prob. Code §§44 and 6402.
61. Prob. Code §§6560 et seq.
62. Prob. Code §§6600 et seq.
63. "Same-Sex Couple Marriage: A Family Policy Perspective," 9 Virginia Journal of Social Policy and the Law 291 (2001)
65. Code Civ. Proc. §377.30.
66. Karen de Sa, Sharon Smith Is Becoming a National Symbol for Gay Rights, San Jose Mercury News, Apr. 17, 2001. Sharon Smith v. Marjorie Knoller, Robert Noel, et al., S.F. Sup. Ct. No. 319532 (Mar. 12, 2001). The National Center for Lesbian Rights in San Francisco, Michael Cardoza, and Robert E. Lazo are cocounsels for Smith.
67. John Gallagher, Looking for Meaning in Tragedy, The Advocate, Apr. 24, 2001, at 45.
68. Elden v. Sheldon, 46 Cal. 3d 267 (1988). See also Coon v. Joseph, 192 Cal. App. 3d 1269 (1987) (holding that same-sex relationship could not meet the Dillon v. Legg test).
69. 26 U.S.C.A. §1703.
70. I.R.C. §1041.
71. Fam. Code §299.5(f).
72. Fam. Code §7540.
73. Evid. Code §§916, 917, 971.
74. In re Cummings, 30 Cal. 3d 870 (1982).
75. Curry, supra note 29, at 2/14.
76. Id. at 2/16.
77. Id. at 2/17.
78. See http://www.leginfo.ca.gov.
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