Estate Planning Issues for California Domestic Partners
Do California domestic partners have the same rights, including inheritance, as married spouses? On this issue, the laws of every state vary greatly. In California, the answer depends on whether you are domestic partners or “registered domestic partners” with the State of California.
How are Domestic Partners Defined in California?
California laws about same-sex marriage, domestic partners, domestic partnerships, and registered domestic partnerships have evolved over the past years. Currently, domestic partners are defined under California statute as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” While two people can call themselves domestic partners, to be protected by California law and enjoy the statutory benefits, they must register with the State.
A legal domestic partnership is established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State and meet specific requirements, namely:
- Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity.
- The two persons are not related by blood in a way that would prevent them from being married to each other in this state.
- Both persons are at least 18 years of age, except as provided in Section 297.1.
- Both persons are capable of consenting to the domestic partnership.
The benefit of registering as domestic partners is that under California law, registered domestic partners generally have the same rights, protections, and benefits granted to spouses.
Brief History of Domestic Partnership Rights
Everyone knows what a marriage is, but not everyone knows what a domestic partnership is. A domestic partnership is an alternative to marriage and was originally created for same-sex couples who could not legally marry.
However, when the US Supreme Court legalized same-sex marriage in 2015 in Obergefell v. Hodges, marriage became an option for same-sex couples as well. A domestic partnership is not just for same-sex couples; any couple can choose this status when marriage is not something they desire, for whatever reason.
In general, a domestic partnership is a relationship where two adults live together and plan to do so indefinitely. California says it is an intimate and committed relationship of mutual caring. They each may intend to remain the other's only domestic partner may be financially responsible for each other, and may or may not enter into a legal agreement defining their rights and responsibilities.
California is more progressive than most states, and benefits for registered domestic partnerships and marriages are generally the same. Examples of such benefits include:
- health insurance
- sick leave
- parental leave
- death benefits
- the power to make financial and medical decisions on the partner's behalf
- adoption rights
But while California may be more progressive, other jurisdictions are not. Federal law does not recognize domestic partnerships for the purposes of benefits. And other countries, like Israel, do not hold even registered California domestic partnerships on the same legal footing as marriage.
Estate Planning Issues Facing Unmarried Couples
California laws are changing to be more inclusive of rights and benefits. Other jurisdictions differ and lag behind. That is why unmarried California couples need to have the help of a trained California estate planning attorney.
Leaving the legalities aside for just a moment, loving couples want the ability to take care of one another when there is a medical calamity. And couples want the ability to leave property to their partners or spouses and appoint them as executors or trustees to their wills and trust. There are no issues with these benefits and rights falling to a married spouse in almost every state.
Fortunately, in California, the same is true for registered domestic partners.
But what about life partners, unregistered partners, or loving couples living together? The laws are complicated, and it is best to understand them before anything happens, not after.
Below are some scenarios you should plan for ahead of time:
- Being unable to manage your significant other’s financial affairs or speak with institutions or government agencies on their behalf if they become incapacitated. Suppose your partner has not set up a financial power of attorney naming you as their agent authorized to act on their behalf. In that case, a court will need to appoint someone as a guardian or conservator to manage their affairs.
- Being unable to make medical decisions for your significant other, visit them in a hospital, or obtain healthcare information about them during a severe illness or incapacity. If your partner has not set up a healthcare power of attorney and a living will (sometimes referred to as an advance healthcare directive), there are default laws that specify who is authorized to make those decisions and receive medical information)
- Losing out on income, government benefits, insurance benefits, or retirement benefits that are exclusive to a deceased person’s surviving spouse
- Paying more in federal estate or gift taxes because there is no marital deduction or exemption for unmarried couples
- Being unable to take advantage of a tax deferral by rolling over retirement accounts because they can be rolled over only by the deceased account owner’s surviving spouse
- Being unable to serve as executor or personal representative of your deceased partner’s estate if your partner has not created a will and named you to serve in that role. If a person dies without a will, state default laws usually provide that a surviving spouse, child, or another relative has priority to serve in that role.
- Losing property or accounts after your significant other’s death if your name was not on the title
- Losing custody of your children if you are not their legal parent either through adoption or a legal proceeding giving you parental rights
As this list demonstrates, unmarried couples face many estate planning issues. Many of these potential benefits may still be available to you as an unmarried person in a domestic partnership. Other benefits, however, such as benefits under federal estate and gift tax laws or retirement account laws, are available only to married couples.
Your Next Best Steps
As an unmarried couple living in California, you have additional factors to consider.
Fortunately, California gives you more options and rights than most states. But to make sure these rights apply to your domestic partnership, you must know the law and how to use it to your advantage.
You can make sure that you have the legal documents that give you the ability to care for each other, And the proper use of wills and trusts are powerful estate planning tools to ensure your assets are distributed in the future according to your wishes.
Let us show you how to plan your will and trust to protect your loved one and family members.
Although California trusts and estate law may be complicated, this is all we do.
San Diego Legacy Law, PC is a qualified estate planning attorney firm in San Diego, California. We are familiar with all federal and California estate and trust laws. We know how to best help you achieve your estate planning goals, especially how to use trusts and wills to ensure your wishes.
Call today for a free consultation and learn your next best steps