CALIFORNIA AND SAN FRANCISCO DOMESTIC PARTNERSHIPS
California offers some of the most broad and progressive domestic partnership rights in the country. California domestic partners enjoy nearly every state-conferred right available to married couples. In addition, the act allows for local government to extend and broaden these rights for couples who choose to register under additional local provisions. San Francisco is one such city, and offers additional rights administered by the San Francisco Human Rights Commission.
It is important to know the difference between the state and local domestic partnership registries. Registering for one does not confer the benefits of the other. For instance, San Francisco registered domestic partners are not considered a California domestic partners unless they have also registered with the California Secretary of State.
Assembly Bill 205, known as the California Domestic Partner Rights and Responsibilities Act of 2003 (AB 205) is the bill which enacts these rights for Californians. AB 205 defines it's own purpose as follows:
"This act is intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in Sections 1 and 7 of Article 1 of the California Constitution by providing all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties and to further the state's interests in promoting stable and lasting family relationships, and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises."
Benefits of a California Domestic Partnership
The benefits extended to domestic partners are quite extensive in California. These include:
- employment rights and medical-leave benefits;
- certain housing and rent-control protections;
- the right to oversee a deceased partner's remains;
- worker's compensation benefits;
- immunity against being forced to testify against one's partner in court;
- certain rights to a portion of a deceased partner's estate;
- the right to sue for the wrongful death of a partner; and
- many more rights not listed here.
In addition, just as married couples can appeal to the courts for divorce, so too may California domestic partners. California family courts are available to resolve domestic partner disputes ranging from child custody to domestic violence and partner-support issues.
Responsibilities of a California Domestic Partnership
California Domestic Partnerships entail certain responsibilities and potential drawbacks in addition to the many benefits. Couples should seriously consider these responsibilities before entering into a domestic partnership.
For instance, California domestic partners can be held mutually responsible for one another's debt. Also, some low-earning partners may be disqualified from means-based assistance because of the other partner's higher income. In addition, registration as a domestic partnership may have a negative impact on one partner's immigration status. Domestic partnership registration may be seen by the INS as proof of intent to stay permanently in the US. The domestic partnership does not, however, confer the same immigration benefits as marriage. In other words, California domestic partnerships do not confer resident or citizenship status on non-citizen partners.
Moreover, California's Domestic Partnership Registry is considered public information. The registry is not currently available online, but the secretary of state will provide information upon written request. Potential partners concerned with privacy—for instance, those in the military—should carefully consider this fact before proceeding.
Requirements for a California Domestic Partnership
In order to qualify for registration as a California domestic partnership, couples must meet the following requirements:
- The partners must share a common residence;
- Neither partner may already be married or a in a registered domestic partnership with someone else;
- The partners must not be related (with some exceptions);
- The partners must each be at least 18 years of age;
- If the partners are of different genders, at least one must be over the age of 62 and meet the eligibility for old-age Social Security benefits; and
- Both people in the partnership must be capable of consenting to the domestic partnership.
Some of these requirements have not been tested in court and are still open to interpretation. If you have questions about your qualifications to become a domestic partner, you should contact a domestic partnership attorney for a consultation.
Federal Treatment of California Domestic Partners
US federal treatment of domestic partnerships is still evolving. In 2004, the United States Government Accounting Office (US GAO) updated the list of rights accorded to legally married couples under various federal laws. The GAO found a total of 1138 such rights, and consequently, these rights are often referred to as the “1138 rights.” These rights include such vital protections as Veteran's and Social Security benefits for surviving spouses, numerous employment protections under ERISA, and the 59 separate provisions of the US tax code that treat married and single people differently. None of these benefits are not extended to California Domestic Partners.
Regarding federal taxation, at this time the Internal Revenue Code does not allow domestic partners to file taxes jointly, and does not recognize earned income as the community property of a domestic partnership. Moreover, survivor benefits probably do not qualify for the federal tax exemption that is conferred on such benefits to married couples. As a result, California domestic partnerships may result in significant income tax exposure, particularly to high earning households. If you are concerned about tax planning, you should speak with an Estate Planning Attorney or a tax planner.
For a more complete explanation of the various 1138 rights, you should contact a domestic partnership attorney.
Local Domestic Partnership Laws vs. State Domestic Partnership Laws
Local domestic partnerships are valid in California. Local laws, such as San Francisco's Domestic Partnership Agreement rules can either be used independently, or can be coupled with a California domestic partnership to expand the rights and responsibilities already extended under the Family Code. Registration under a local provision, however, does not confer the benefits of state registration. Domestic Partners should therefore be certain of where and how they are registered. Domestic Partners unsure of where they are registered can write to the California Secretary of State to inquire as to their status.
San Francisco Domestic Partnerships
San Francisco domestic partnership agreements are primarily for employees of the City and County of San Francisco. Businesses wishing to contract with San Francisco are also effected by this rule. Various secondary benefits may accord to some individuals, but these vary on a case-by-case basis. Registration is quite simple, but domestic partners should bear in mind that entering into a San Francisco domestic partnership may create unintended rights and responsibilities of support. If you have concerns about the implications of entering into a domestic partnership of any kind, you should contact a domestic partnership attorney.
Pre-Registration Agreements (Prenups for Domestic Partners)
Domestic Partnerships, just like marriages, sometimes end in break up. California domestic partnership laws accord the same rights and responsibilities to ex-domestic partners as they do to ex-spouses. That means that partners must divide community property equally, may have to pay partner-support after dissolution, and must pay child support in cases that involve minor children.
Couples considering entering into a domestic partnership would do well to execute a pre-registration agreement. Pre-registration agreements, just like prenuptial agreements, resolve most of these issues, including the way in which property will be divided, if the relationship ends in a break up. Agreeing on these terms when the couple is getting along is much easier than doing so when the relationship has taken a turn for the worse. Moreover, the existence of a valid pre-registration agreement often creates security and peace of mind that can keep a relationship intact during rocky times. The cost of a pre-registration agreement is minimal when compared to the potential litigation costs associated with a messy dissolution.
Domestic partners in particular need to be careful of creating implied rights in one another both before and after the existence of the partnership. It is possible for cohabitating partners to inadvertently promise, and therefore create an obligation to support the other partner even after break up. Pre-registration agreements spell out these rights and obligations in clear language so there are no misunderstandings. If you have any questions about your rights, or about creating a pre-registration agreement, you should contact a domestic partnership attorney for a consultation.
