AB 205: California Domestic Partership Act

by April C. Ball, Esq.

What is AB 205?

AB 205 is The Domestic Partner Rights and Responsibilities Act of 2003 by assembly member Jackie Goldberg (AB 205). It provides legal standing in California for registered same-sex couples and for certain registered opposite-sex couples where two adults have chosen to share one another’s lives in an intimate and committed relationship of mutual caring. Registered Domestic Partnerships are governed by the California Family Code, Section 297.

How Do We Register as Domestic Partners?

To properly register, you must declare the following on a State-prescribed form:

1. Both persons have a common residence;
2. Neither person is married to someone else or is a member of another domestic partnership;
3. The two persons are not related by blood in a way prevented by California law;
4. Both persons are at least 18 years of age;
5. Both persons are capable of consenting to the domestic partnership; and
6. Either: a) both persons are members of the same sex; or b) for opposite sex couples, one or both persons are over the age of 62.

By registering, each of you consents to the jurisdiction of the Superior Courts of California for certain issues pertaining to the registered domestic partnership.

What Are the Benefits to Registering as Domestic Partners?

Currently, domestic partnership rights include:

• Community property rights and responsibilities
• Step-parent adoptions
• Standing to sue for wrongful death or infliction of emotional distress if a partner is killed or injured
• Hospital visitation rights
• Make medical decisions for a partner
• File for state disability benefits on behalf of a disabled partner
• Use sick leave to attend to an illness of a partner or a partner’s child
• Be appointed as administrator of a partner’s estate

Even with all of these benefits, it is important to have an estate plan that specifically addresses each of your beneficiary, health care and life choices.

Why is Community Property Important?

Community property means that, for state purposes, each registered domestic partner is entitled to an undivided one-half interest in any asset acquired or income earned by the other registered domestic partner during the period of registration. This includes items such as wages, other types of employment income, and items purchased with wages and employment income. Community property may also include items that began as each partner’s separate property, but over time, converted into community property because the registered domestic partners either determine to convert the property (for example, one partner adds the other’s name to the deed on a piece of property) or accidentally convert the property (for example, deposit separate property and community property into a joint account). Even with community property, assets owned by either partner before registration, all income generated by those assets and assets inherited by a partner after registration are considered separate property. Community property issues may greatly influence personal planning issues. Not only does it make a big impact on termination or dissolution of the partnership, it also impacts individual wealth, potential litigation risks and bankruptcy proceedings.

However, California allows registered domestic partners to plan how they will manage their community property and whether having community property rights make sense for their relationship. To do so, persons may sign a pre-registration agreement (before registering with the state of California) or post-registration agreement (after registration). Sometimes this is referred to as “opting out” of community property rights.

What is the Effective Date of the Community Property Rights?

While many rights, including community property began as of January 1, 2005, the law is retro-active to the date of the couple’s registration with California (which may be as far back as the year 2000). However, the law is not retroactive for adoption.

What Are the Potential Burdens/Limitations to Registering as Domestic Partners?

While there are numerous benefits, registering as domestic partners with the State of California may not be right for everyone. For example, because registration is public record, those persons who wish to maintain their privacy, such as military members, should not register.

Also, even though California law recognizes registered domestic partners as a “community property couple,” other laws do not recognize the partnership. This is because the 1996 Federal Defense of Marriage Act (“DOMA”) defines marriage as a legal union between one man and one woman for purposes of all federal law, and provides that states need not recognize a marriage from another state if it is between persons of the same sex. Therefore, all federal laws do not recognize the registered domestic partnership relationship, meaning laws such as Social Security rights, qualified pension plans under ERISA, and Qualified Domestic Relations Orders.

DOMA also affects tax-filing status. Under DOMA, registered domestic partners cannot file a joint personal tax return. Therefore, for federal tax purposes, each registered domestic partner must file as a single, unmarried person. Because state tax returns must match the federal tax return filing status, registered domestic partners must also file as a single, unmarried person for California, even though California law recognizes the couple’s domestic partnership status.

What About Parental Rights?

Because many male same-sex couples utilize surrogate mothers, they generally utilize the courts to have parentage listed for both partners. For female same-sex couples, the timing of the birth/adoption is critical. While there are many court cases being decided, here is what experts in this area of law expect.

Born on or after 1/1/05 to Registered Domestic Partners:

Same rights as married couples, meaning that what birth mother says controls. However, does NOT confer parental rights. Therefore, many suggest that the couple sign a voluntary declaration of parentage.

Born 1/1/02—12/31/04 to Registered Domestic Partners:

For births, parentage may be determined at the Registered Domestic Partner termination on Petition and Response; for adoption, the step-parent adoption process is allowed.

Born before 2002 to Registered Domestic Partners:

For births and adoptions, parentage may be determined at the Registered Domestic Partner termination on Petition and Response.

Unregistered Domestic Partners:

For births and adoptions, the courts will determine, using factors such as who intended to create and raise the child and who intended to be the parent.

Is it Right For You?

Undoubtedly, AB 205 is an issue that all domestic partners, who find themselves in a committed relationship, should become familiar with. Timely and proper planning can ensure that your needs and wishes are met.

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