The Importance of a Domestic Partnership Agreement

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Today, registered domestic partners in California have many of the same rights and responsibilities as married couples. Under current law, registration can protect the rights of domestic partners during times of family crisis and provide access to family benefits at work that, up until recently, were often unavailable, such as medical and dental insurance, disability and life insurance, family and bereavement leave, and pension benefits.

The path to these protections began officially in 1999, when California lawmakers passed a law establishing a statewide domestic partner registry for the first time. That law (AB 205) was expanded in 2001 to give new rights to registered domestic partners, including the right to make medical decisions for an incapacitated partner, the right to sick leave to care for a partner, the right to use stepparent adoption procedures, and the right to inherit from a partner's estate if the partner should die without a will.

The California legislature passed another expanded version of AB 205 on September 4, 2003 that granted most of the rights of married people to same-sex partnerships. New Jersey passed a similar bill on January 8, 2004. California now allows persons in a committed lesbian or gay relationship, as well as persons in a committed opposite-sex relationship where one partner is 62 years or older, to register as domestic partners. The new law represents a big change. While it extends many rights to registered domestic partners, it also details new responsibilities:

  • Registered domestic partners may acquire and own community property
  • Debts incurred by registered domestic partners are community debts
  • Domestic partners can be held responsible for each other's support (similar to alimony)

A Domestic Partnership Agreement is especially important for same-sex couples who are planning to register in California, since registered domestic partners are now treated in much the same way as married couples.

Opposite-sex couples planning to enter into marriage have long had the opportunity to create a Prenuptial Agreement.With a Prenuptial Agreement, married couples may enter into a legal contract that establishes what will happen to their assets and income in the event of divorce, separation or death.

A Prenuptial Agreement can preserve the nature of property in the event that the marriage ends, and importantly, provide protection for dependents such as children. In essence, it provides assurance that, should the marriage end, the outcome should be for the couple to decide, not the courts.

In every practical sense, a Domestic Partnership Agreement works much like a Prenuptial Agreement does for opposite-sex couples who are planning to marry. In fact, Domestic Partnership Agreements are governed by the same laws as prenuptials and are important for the same reasons. Such an agreement can serve to clarify the financial terms of the relationship and the disposition of areas of concern, such as joint property ownership and shared responsibilities.

With this in mind, those planning to enter into a registered domestic partnership should consider creating a Domestic Partnership Agreement, which can serve to:

  • Keep finances separate
  • Protect one or both partners from the other person's debts
  • Support a partner's estate plan by waiving legal claims to property intended for children or other family members
  • Define who gets what in the event of dissolution
  • Clarify each person's responsibilities during the partnership
  • Protect dependents, such as children

Any kind of property, such as a home, automobile, stocks, checking accounts, business ownerships, and personal belongings can be included in the agreement. Debts can also be categorized as separate property so that one partner will not be liable for the debts of the other, should the relationship dissolve.

Also like a Prenuptial Agreement, a Domestic Partnership Agreement can set forth what will happen to your and your partner's assets and income in the unfortunate event of separation or death. The agreement can preserve the nature of property in such an event; separate property can remain separate and not be subject to community property or equitable distribution laws when the partnership ends.

But what if you're not a resident of California, or another state that recognizes domestic partnerships? People of the same sex who share a domestic life together can also better protect themselves by creating a Domestic Partnership Agreement, even if they do not live in a state that allows them the opportunity to legally register as domestic partners. While some jurisdictions offer protections for individuals who have lived together for a significant period of time, others do not. It can, however, be beneficial for same-sex couples to define the terms of their relationship.

Beyond financial concerns, a domestic partnership agreement can help set other parameters in the relationship. Many couples never get around to discussing day to day life matters--- let alone setting them down on paper--- and the creation of a legal document defining the relationship could arguably help clarify and strengthen the relationship. Most important, domestic partners can establish for themselves a legal document that will provide them with important protections and a clear understanding of the responsibilities they share together.