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Domestic Partnerships & Marriage

A California Domestic Partnership is a legal relationship available to same-sex couples, and to certain opposite-sex couples in which at least one party is at least 62 years of age. It affords the couple most but not all of "the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law..." as married spouses.[1][2]

Enacted in 1999, the domestic partnership registry was the first of its kind in the United States created by a legislature without court intervention. Initially, domestic partnerships enjoyed very few privileges—principally just hospital-visitation rights and the right to be claimed as a next of kin of the estate of a deceased partner. The legislature has since expanded the scope of California domestic partnerships, though these still do not provide all of the rights and responsibilities common to marriage. As such, it is now difficult to distinguish California domestic partnerships from civil unions offered in a handful of other states. Although the program enjoys broad support in California,[3] it has been the source of some controversy.

California has expanded the scope or modified some of the processes in domestic partnerships in every legislative session since the legislature first created the registry. Consult the California Secretary of State for the most current information.[4]

As of 2007, California affords domestic partnerships most of the same rights and responsibilities as marriages under state law (Cal. Fam. Code §297.5). Among these:

  • Making health care decisions for each other in certain circumstances
  • Hospital and jail visitation rights that were previously reserved for family members related by blood, adoption or marriage to the sick, injured or incarcerated person.
  • Access to family health insurance plans (Cal. Ins. Code §10121.7)
  • Spousal insurance policies (auto, life, homeowners etc...), this applies to all forms of insurance through the California Insurance Equality Act (Cal. Ins. Code §381.5)
  • Sick care and similar family leave
  • Stepparent adoption procedures
  • Presumption that both members of the partnership are the parents of a child born into the partnership
  • Suing for wrongful death of a domestic partner
  • Rights involving wills, intestate succession, conservatorships and trusts
  • The same property tax provisions otherwise available only to married couples (Cal. R&T Code §62p)
  • Access to some survivor pension benefits
  • Supervision of the Superior Court of California over dissolution and nullity proceedings
  • The obligation to file state tax returns as a married couple (260k) commencing with the 2007 tax year (Cal R&T Code §18521d)
  • The right for either partner to take the other partner's surname after registration
  • Community property rights and responsibilities previously only available to married spouses
  • The right to request partner support (alimony) upon dissolution of the partnership (divorce)
  • The same parental rights and responsibilities granted to and imposed upon spouses in a marriage
  • The right to claim inheritance rights as a putative partner (equivalent to the rights given to heterosexual couples under the putative spouse doctrine) when one partner believes himself or herself to have entered into a domestic partnership in good faith and is given legal rights as a result of his or her reliance upon this belief.[5]

Differences from Marriage

While domestic partners receive most of the benefits of marriage, several differences remain. These differences include, in part:

  • Couples seeking domestic partnership must have a common residence; this is not a requirement for marriage license applicants.[2]
  • Couples seeking domestic partnership must be 18 or older; minors can be married before the age of 18 with the consent of their parents.[2]
  • California permits married couples the option of confidential marriage; there is no equivalent institution for domestic partnerships. In confidential marriages, no witnesses are required and the marriage license is not a matter of public record.[2]
  • Married partners of state employees are eligible for the CalPERS long-term care insurance plan; domestic partners are not.[2][6][7] In April 2010, a lawsuit was filed challenging the exclusion of same-sex couples from the program.[8]

In addition to these differences specific to the United States, some countries that recognize same-sex marriages performed in California as valid in their own country, (e.g., Israel [9]), do not recognize same-sex domestic partnerships performed in California.

Many supporters of same-sex marriage also argue that the use of the word marriage itself constitutes a significant social difference, and in the majority opinion of In Re Marriage Cases, the California Supreme Court agreed,[10] suggesting an analogy with a hypothetical that branded interracial marriages "transracial unions".[11]

A 2010 UCLA study published in the journal Health Affairs suggests various inequities (including "Inequities in marriage laws") might have "implications for who bears the burden of health care costs." That study finds that men in same-sex domestic partnerships in California only 42% as likely to receive dependent coverage for their partners as their married peers, and that women in same-sex domestic partnerships in California are only 28% as likely to receive that coverage.[12][13]

Resources

References

  1. ^ FAMILY.CODE SECTION 297-297.5[1]
  2. ^ a b c d e In Re Marriage Cases, California Supreme Court Decision, footnote 24, pages 42-44.
  3. ^ “California Opinion Index: A Digest on How the California Public Views Gay and Lesbian Rights Issues.” The Field Poll: San Francisco (March 2006).
  4. ^ Domestic Partners Registry - California Secretary of State
  5. ^ Ellis v. Arriaga, 162 CA4th 1000, 109 (2008) overturning Velez v. Smith (2006)
  6. ^ Congressional Testimony of Gregory Franklin, Assistant Executive Officer of CalPERS, to the Subcomittee on Federal Workforce, Postal Service and District of Columbia, July 8, 2009, p. 3. "Of note is that the CalPERS long-term care insurance program was exempt from AB 205 because the program is governed by the U.S. Internal Revenue Code as a tax-exempt governmental plan and the federal government does not recognize domestic partnerships. Allowing domestic partners to enroll in the long-term-care plan would in effect be enrolling persons who are not eligible under federal tax law and therefore threaten the tax-exempt status of the plan. "
  7. ^ California Family Code, Section 297.5 (g) establishes this exception.
  8. ^ Bob Egelko (April 14, 2010). "Same-sex couples sue over state insurance". San Francisco Chronicle. http://articles.sfgate.com/2010-04-14/bay-area/20848622_1_long-term-care-same-sex-partners-care-or-nursing-homes. Retrieved 2010-07-22.
  9. ^ Search - Global Edition - The New York Times
  10. ^ In Re Marriage Cases, California Supreme Court Decision, page 81.
  11. ^ "Gay Marriage Recognition Bill Signed In California". cbs13.com. 2009-10-29. http://cbs13.com/local/gay.marriage.recognition.2.1243603.html. Retrieved 2009-10-21.
  12. ^ Ponce, Ninez A.; Susan D. Cochran, Jennifer C. Pizer and Vickie M. Mays (2010). "The Effects Of Unequal Access To Health Insurance For Same-Sex Couples In California". Health Affairs 29 (8): 1539–1548. doi:10.1377/hlthaff.2009.0583. http://content.healthaffairs.org/cgi/content/abstract/hlthaff.2009.0583. Retrieved 8 November 2010.
  13. ^ "UCLA study finds health insurance inequities for same-sex couples". UCLA. June 25, 2010. http://newsroom.ucla.edu/portal/ucla/ucla-study-finds-health-insurance-160792.aspx. Retrieved 8 November 2010.