TYPES OF DOMESTIC PARTNERSHIPS
There are two basic forms of domestic partnership registration available in California, and your rights, benefits and obligations as a result of registration depend on whether you are registered with the state of California or a local government (city or county).
RIGHTS, BENEFITS & OBLIGATIONS
State of California
Under California law effective January 1, 2005, couples registered as domestic partners with the state of California (through the California Secretary of State’s domestic partners registry) “shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations and duties under law … as are granted to and imposed upon [legally married] spouses.” Registration is available to same-sex couples at least 18 years of age, and opposite-sex couples where at least one person is 62 years of age or older.
However, there are several tax-related instances where registered domestic partners are treated differently than married spouses, including the filing of income tax returns and the tax treatment of real property transferred to a surviving spouse upon the death of their registered domestic partner. This is a new and evolving area of the law, and care must be taken to remain aware of changes in the law affecting domestic partners.
California is a “community property” state which means, generally, that anything earned or acquired (other than by gift or inheritance) by either party during the domestic partnership is owned equally by both parties. Currently, most registered domestic partners are required to file joint California income tax returns (with some exceptions), but each person must file a separate federal income tax return.
In most cases, registered domestic partners who decide to end their relationship must do so through the courts by obtaining a divorce decree.
Local Governments
Many cities and counties provide some form of domestic partnership registration. Generally, registration with a city or county provides only hospital and jail visitation rights within the jurisdiction (city limits or county boundaries), and occasionally some employee benefits if one of both of the partners is employed by the city or county with which the couple is registered. Some private employers will also recognize local domestic partnership registration as sufficient to grant spousal employee benefits.
The rights, benefits and obligations of domestic partners under California law DO NOT APPLY to couples registered only with a city or county.
DOMESTIC PARTNERSHIP AGREEMENTS
California’s community property laws relative to married couples apply equally to registered domestic partners. However, couples may enter into private domestic partnership agreements regarding the rights and responsibilities of the parties in the event of divorce.
GAY MARRIAGE
On May 15, 2008, the California Supreme Court ruled that civil marriage between same-sex couples was permitted under the California Constitution, and on June 17, 2008 the first legal same-sex marriages were conducted in California. On November 4, 2008, the voters passed Proposition 8, which amended the State Constitution to provide that “only marriage between a man and a woman is valid or recognized in California”.
The California Supreme Court will hear oral arguments on March 5, 2009 in the cases which seek to invalidate Proposition 8 on various grounds, and others which seek to nullify the 18,000 same-sex marriages that occurred in California between June 17, 2008 and November 4, 2008. The Court’s decision, which will determine the status of Proposition 8 and the validity of the marriages currently in effect, must be issued within 90 days of oral argument.
DOMESTIC PARTNERS NOT RECOGNIZED UNDER FEDERAL LAW
Federal law does not recognize same-sex marriage or domestic partnerships (whether between same-sex or opposite-sex couples) for any purpose. The 1,138 marital and spousal economic benefits married couples enjoy under federal law (such as tax treatment and survivor’s benefits for Social Security and federal pensions) do not currently apply to domestic partners.
Copyright 2009 Dan H. Burcham, used with permission.