Changes in California Domestic Partnership law

Changes in California Domestic Partnership law

by Stephanie Morrow, December 2009

Among all 50 states, California grants the most rights and protections to same-sex couples through its domestic partnership law. A domestic partnership is a legal status similar to marriage. Available in California since 2000, same-sex couples can register as domestic partners and receive rights such as hospital visitation privileges, the right to use employee sick leave for an ill partner or partner's child, and a variety of other laws dealing with wills, death benefits and family leave. Now, recent changes in the California law are giving same-sex couples the opportunity to enjoy many more of the same benefits often linked with marriage.

A.B. 205: Transforming California's Domestic Partnership Law

California expanded domestic partnership rights for same-sex couples with A.B. 205, also known as the California Domestic Partner Rights and Responsibilities Act of 2003. Effective on January 1, 2005, A.B. 205 provides the same rights and duties to same-sex couples as those of spouses. For the first time, it allows for recognition of similar same-sex unions in other jurisdictions.

A.B. 205 makes domestic partnerships much like marriage. It is probably the biggest legal change worldwide to affect same-sex couples, given the large number in California who have already registered as domestic partners. Since opposite-sex couples over the age of 62 qualifying for certain Social Security benefits can also register as domestic partners, the number of affected people is even larger.

Before A.B. 205, couples who registered as domestic partners had the following rights:

  • the right to receive a portion of a partner's property if he or she dies without a will;
  • the right to use employee sick leave to care for a sick partner or partner's child;
  • the right to hospital visitation;
  • the right to make medical decisions if a partner becomes incapacitated;
  • the right to sue for wrongful death of a partner;
  • the right to use step-parent adoption procedures to adopt a partner's child; and
  • the right to receive unemployment benefits if forced to relocate because of a partner's job.

Under A.B. 205, domestic partners are now financially responsible for each other, both during the relationship and after it ends. In other words, domestic partners will be responsible for each other's debts. For example, if one partner takes out a loan for a new car and fails to pay, the bank could come after the other partner. In addition, if the relationship ends, a court would treat the breakup just like a divorce and could order one partner to pay financial support to the other partner.

Another change in place after A.B. 205 is that California's community property system now applies to domestic partnerships. A partner is now automatically be entitled to half the interest in any property the other partner purchases after they become partners. If the partners break up, all community property will be divided equally. However, A.B. 205 also gives partners the right to use the court system to help divide any assets.

Additional benefits under A.B. 205 include:

  • access to housing for families, students, or senior citizens;
  • rent control protections;
  • treatment as a spouse under worker's compensation and public assistance; and
  • the right not to have to testify against a partner in a legal proceeding.

Parental rights have also changed under the new law. If one partner gives birth after entering a domestic partnership, California will treat the other partner as the parent of the child. If either partner has a child prior to entering into a domestic partnership or adopts individually, California will allow the other partner to adopt the child just as it would a step-parent. If the relationship ends after one of the partners has a child, the California courts will determine custody and visitation rights, and both parents would be responsible for support. Like all married couples, domestic partners do not have parental rights of their partner's children from prior relationships.

A.B. 205's biggest change is the way same-sex couples can end their relationship. In most circumstances, same-sex couples will now have to get a divorce to divide any assets, seek alimony, and secure any child support, if necessary, as do married couples. However, partners who agree to separate, do not own any real estate, and have been together less than five years will be able to end the partnership by filing a notice with the Secretary of State.

What Is Different From Marriage?

While A.B. 205 expands many rights of same-sex couples, there are still some differences between a partnership and what is defined as marriage. For example, same-sex couples are still not considered "married" and cannot simply walk down the aisle and say "I do" to be legally married. In addition, same-sex couples cannot file joint state or federal income taxes, and state employees are not entitled the same benefits under the state's long-term care benefits package.

Because this is a state law, the changes do not affect how domestic partnerships are viewed on a federal level; the federal government still does not recognize them. Domestic partners are not entitled to their partners' Social Security benefits or to any other federal benefits that married couples receive. In addition, because domestic partnerships are not recognized in most other states, partners will not necessarily get the rights they are entitled to under California law if they move to a different state.