The California Domestic Partner Rights and Responsibilities Act of 2003 (“AB 205”) created comprehensive new protections and duties for registered domestic partners under state law. The attached chart, “California Domestic Partnership Law: An Overview,” summarizes the rights and duties afforded to registered domestic partners and compares them with the rights and duties of married spouses. There have been important developments since AB 205 was enacted — including court decisions, additional legislation and government policy statements. Significant examples of these are set forth below. This continues to be a dynamic, evolving field in which certain principles are increasingly well established under state law, while a number of questions with far-reaching implications — especially those involving federal law — remain unanswered.
Legislative Additions To The Protections Afforded By AB 205
Domestic Partnership Technical Amendments (AB 2580 – Goldberg): This statute made technical changes and clarifications to AB 205. It provides that any reference to a “date of marriage” (such as in laws relating to dissolution, spousal support and community property) be deemed to refer to date of registration. The statute also created a window in which registered partners could enter into the equivalent of a pre-nuptial agreement. The law further permitted a surviving unregistered partner to bring a wrongful death action in limited circumstances.
California Insurance Equality Act (AB 2208 – Kehoe): This law prohibits insurance companies and health plans from issuing policies or plans that discriminate against registered domestic partners. This means that all policies and plans that include coverage for spouses — including health, life, auto and homeowners insurance policies — must provide coverage on equal terms for registered domestic partners.
Death Benefits for Public Employees Who Retired Pre-AB205 (SB 973 – Kuehl): This law permits the registered domestic partner of a public employee who retired prior to January 1, 2005 (when AB 205 took effect) to receive death benefits if the retiree dies before the partner.
Property Tax Reappraisal Exclusion For Domestic Partners (SB 565 – Migden): This law built upon a Board of Equalization rule and the Board’s subsequent broadening interpretation of that rule, both of which protect registered domestic partners from property tax reassessment upon the death of one partner. SB 565 codified the BOE rules and expanded the protection to inter vivos changes (that is, those between living persons). Starting with the 2006-07 fiscal year, SB 565 excludes transfers of property between registered partners from the definition of “change in ownership” in Rev. & Tax. Code § 62, so that partners will not be subject to reappraisals and property tax increases upon the death of one partner, or upon dissolution or legal separation, as is the case for spouses.
Note that the constitutionality of the BOE’s rule was challenged by a couple of counties in Strong v. Board of Equalization, Case No. 05AS01701. After the Sacramento Superior Court upheld the BOE rule in March 2006, the counties appealed. The case is now being briefed to the Third Appellate District (Appellate Case No. C052818).
(PENDING) State Income Tax Equity Act of 2006 (SB 1827 – Migden): This bill would permit registered domestic partners to file their state income tax returns jointly (something AB 205 excepted from its general mandate that domestic partners shall have the same rights and duties as spouses, see Fam. Code § 297.5(g)), or as “registered filing separately,” with options that parallel those of spouses. The bill also would repeal AB 205’s rule that earned income shall not be considered community property for state income tax purposes. Because federal law does not recognize domestic partnerships, passage of SB 1827 will not alter the rules requiring registered domestic partners to file their federal income taxes as “single.” As of August 2006, this bill had been approved by the Senate and was pending before the Assembly.
Published Opinions concerning the Rights and Duties of Domestic Partners
Businesses Must Treat Registered Domestic Partners The Same As Spouses: In Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, the Supreme Court held that the defendant’s refusal to extend the same benefits it provided spouses of its members to the registered domestic partner of a member violated the Unruh Civil Rights Act. The court explained: “It is clear from both the language of section 297.5 and the Legislature’s explicit statements of intent that a chief goal of the Domestic Partner[s] Act is to equalize the status of registered domestic partners and married couples.”
AB205’s Constitutionality Upheld: In Knight v. Superior Court (2005) 128 Cal.App.4th 14, petitioners argued that the legislature impermissibly had amended Proposition 22 (the “Limit on Marriages” initiative statute adopted in 2000), by extending most of the rights and duties of spouses to domestic partners without voter approval. The court disagreed, finding that Prop. 22 only restricted marriage and did not affect the legislature’s ability to enact domestic partner laws.
AB2580’s Wrongful Death Protection Upheld: Two separate decisions upheld the wrongful death cause of action provided for surviving registered domestic partners by AB 25 (passed in 2001) and certain unregistered partners by AB 2580. In Bouley v. Long Beach Memorial Medical Center (2005) 127 Cal.App.4th 601, the court rejected a due process challenge to the retroactive aspect of AB 25, which allowed a surviving partner to bring a wrongful death claim although the partner’s death occurred before the effective date of the domestic partner law. The court held there is no vested right in freedom from liability for causing the wrongful death of another. Armijo v. Miles (2005) 127 Cal.App.4th 1405, upheld the provision of AB 2580 that grants wrongful death standing to a surviving unregistered partner in specified circumstances, also rejecting the defendants’ constitutional challenge.
The Domestic Partnership Laws Do Not Discriminate Unlawfully Based On Sex: In Holguin v. Flores (2004) 122 Cal.App.4th 428, the Court of Appeal rejected a challenge by a heterosexual man who argued that the limitation of registered domestic partnership to same-sex couples under the age of 62 discriminated against him unconstitutionally based on his sex. He made this argument after being denied standing to sue for the wrongful death of his girlfriend because they were unmarried. The court held there was no equal protection violation because he could have accessed wrongful death rights through marriage, and was not in a worse position than domestic partners who must register to have that right.
Parenting Cases: The following cases address the parental rights and duties of unregistered partners under the Uniform Parentage Act and rules other than the Domestic Partner Act; yet, they are important for those advising same-sex couples who have or are considering children.
Elisa B. v. Superior Court (2005) 37 Cal.4th 108 (applying Fam. Code § 7211(d) and holding that a woman who planned with her partner for the birth of children, welcomed them into her home and held herself out publicly as a parent to them, was a parent and remained financially responsible for them after the couple separated).
Kristine H. v. Superior Court (2005) 37 Cal.4th 156 (birth mother who obtained pre-birth judgment confirming that her domestic partner was their child’s second legal parent was estopped from challenging the validity of that judgment).
K.M. v. E.G. (2005) 37 Cal.4th 130 (woman who donated eggs to her domestic partner and then helped to raise the resulting children in the couple’s shared home was a parent).
Charisma R. v. Kristina S. (2006) 140 Cal.App.4th 301, modified by 2006 Cal.App. LEXIS 928 (following Elisa B. and providing further guidance about when the domestic partner of a biological mother will be recognized as a child’s second parent under Fam. Code § 7211(d)).
Federal Decisions, Policy Guidance and Continuing Uncertainty
California Registered Domestic Partnership Does Not Confer Standing to Challenge the Federal DOMA: A gay male couple sued under the U.S. Constitution challenging California’s marriage law and the federal so-called “Defense of Marriage Act” (DOMA), seeking a California marriage license and the full range of federal rights that come with marriage. The Ninth Circuit Court of Appeals held that the district court correctly abstained from deciding the constitutionality of California’s marriage law while the state courts actively are considering that question under the state constitution, but incorrectly decided that the couple’s registered partnership gave them standing to challenge the constitutionality of DOMA. Smelt v. Orange County, 447 F.3d 673 (9th Cir. 2006).
Bankruptcy: The bankruptcy court has held that registered domestic partners are limited to a single homestead exemption because the federal statute uses the state rule, and California allows only a single homestead exception for spouses. In re Rabin, 336 B.R. 459 (Bankr. N.D. Cal. 2005). The Rabin court concluded that domestic partners likewise qualify for only one exception because AB 205 contemplated equality of treatment between domestic partners and spouses.
Federal Income Taxation: Although married couples with community property who file their federal tax returns separately are required to split their incomes and report half of each one’s income on the two returns, the IRS this year instructed that registered domestic partners are to continue to report their own individual incomes separately on their separate returns, notwithstanding that their incomes are community property. IRS Memorandum MASP-102170-06 (February 24, 2006).
Public Benefits Programs: Just as the property rights and duties that come with marriage can render individuals ineligible for certain means-tested public benefits programs, the same now can be true for registered domestic partners because AB 205 extended to them community property, the duty to provide each other financial support and mutual responsibility for debt. Domestic partners are advised to think carefully before registering if either one depends on MediCal for health coverage (including nursing home care), the AIDS Drug Assistance Program (ADAP) for HIV medications, a Section 8 housing subsidy or other similar programs. The dual federal-state nature of the MediCal program, in particular, gives rise to many questions and, as of this writing, there are no court decisions or state regulations to provide guidance.
Immigration: At this time, the state status of registered domestic partnership is not recognized in federal law, and thus is not a basis for requesting an adjustment of status under the immigration and nationalization laws. Those in the United States on a temporary visa or otherwise without secure legal status may want to think twice before attesting to an intention to remain in a domestic relationship with a U.S. resident by registering a domestic partnership. Although the contents of the registry are not easily accessible to the general public, domestic partnership registration forms are public records.
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Domestic partnership in California remains a dynamic field. Practitioners should anticipate that the coming years will bring more important changes as the laws continue to be interpreted and applied. Additional legislation may augment the benefits and duties provided to registered (and sometimes to unregistered) partners. The courts are likely to confront complex questions where state and federal laws interact. At the same time, efforts continue in the legislature and the state courts to end civil marriage discrimination against lesbian and gay couples. Those with questions about domestic partnership, marriage equality for same-sex couples, other family law issues affecting lesbians, gay men, bisexuals or transgender people, or discrimination based on sexual orientation, gender identity or HIV status, are encouraged to contact Lambda Legal’s Help Desk at 213-382-7600, ext. 330.