A domestic partnership is defined by the California Family Code as two adults of the same sex who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring or two equally committed adults of the opposite sex if one or both partners is over 62 years of age and one or both partners meet specified eligibility criteria under the Social Security Act. The partnership is designed for the parties to hold themselves out as a legal couple similar in many respects to a married couple. Certain benefits attach to domestic partnerships, such as, the ability to make medical decisions for each other, the ability to participate in stepparent adoptions, the right to inherent, the ability to make wrongful death claims, and more. After January 1, 2005, many marital type benefits and responsibilities will be offered to domestic partners.
Effective January 1, 2005, the following are the requirements for the domestic partnership to be recognized by the law:
- The domestic partnership must be registered with the Office of Secretary of State.
- Both parties must declare that they are responsible for each other’s basic living expenses during their domestic partnership.
- Parties cannot be related by blood in the same way that would prevent them from being married.
- A party cannot be married or in another domestic partnership.
- Both parties must be 18 years of age or older.
- Bother parties must be of the same sex or one party must be over 62 years of age. (The law is designed to help those who rely on social security, Medicare, and other federally funded programs to have a formal legal relationship with their partners. A domestic partnership agreement is not recognized by the federal government and so most federal benefits are unaffected by engaging in a domestic partnership.)
- Both parties must be able to consent to the domestic partnership.
- Both parties must live together. (It is acceptable for a party to leave if he/she has the intent to return.)
Procedure to Dissolve the Relationship
- Prior to January 1, 2005, a party can terminate the domestic partnership simply by filing a Termination of Domestic Partnership form with the Secretary of State.
- After January 1, 2005, the domestic partnership will end in the same manner that a marriage terminates namely divorce or annulment.
As of January 1, 2005, a domestic partnership will look more like a marriage. Domestic partners will have many of the rights and responsibilities as married couples.
Here is a list of some of the rights and responsibilities of a domestic partnership effective January 1, 2005:
- Joint ownership in real property with the right of survivorship.
- Parties have the right to equal management and control of the property acquired during the domestic partnership.
- Fiduciary duty to each other
- A party has the responsibility to support his/her partner and or children after dissolution of domestic order, similar to alimony and child support in a divorce.
- Creditors can attach jointly held property.
- The parties have an equal management and control of the domestic partnership real property acquired during the domestic partnership, similar to a marital community property.
- Either party has the right to sue for loss of consortium.
- Each party has the right to make funeral arrangements.
Domestic partners’ statewide benefits may be affected by their partnership status. Statewide benefits for Medi-cal, Calworks, Supplemental Security income for disabled persons, and other programs may base eligibility on a the partners combined income and assets as is often the case with married couples.
Even after January 1, 2005, some marital benefits are not afforded to domestic partnerships. Since the federal government does not recognize domestic partnerships, certain federal governmental benefits are not extended to domestic partners.
- Social security benefits
- Medicare benefits
- Welfare benefits
- Certain Pension/Retirement benefits
- Immigration benefits (a domestic partner could not obtain legal immigrant status by entering into a domestic partnership.)
- Cannot file join income tax returns
- The federal estate and gift tax exemptions to gifts between spouses do not apply to domestic partners.
Notwithstanding the federal government’s treatment, in a divorce proceeding, California Courts may take the federal benefits into consideration when dividing the domestic partnership community property after January 1, 2005.
Certain state benefits that by definition benefit married couples only will not apply to a domestic partnership. This is not an exhaustive list.
- Cannot file joint state returns
- Proposition 13 exemption of tax reassessment upon separation, death, or dissolution of domestic partnership.
Military employees should be cautious about entering into a domestic partnership due to the military’s policy of “don’t ask, don’t tell.” There is the possibility that entering into a domestic partnership might be construed by the military as ‘telling’ one’s sexual orientation that would cause the partner to be disqualified for the military.