Partners Task Force for Gay & Lesbian Couples
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Domestic Partner Registration
The California Approach
© March 6, 2011, Demian


History

The California domestic partner registration followed Hawaii’s footsteps in offering more legal status than a couple could obtain with wills, powers of attorney and relationship agreements. In 2011, Hawaii greatly enlarged the scope of same-sex couple recognition and instituted full Civil Unions.
      [See our article Civil Unions: The Hawaii Approach]

Two other states offer a registry that also has substantive benefits:
      Vermont
            [See Civil Unions: The Vermont Approach]
      Connecticut
            [See Civil Unions: The Connecticut Approach]

See the chart below for U.S. states that offer full, legal marriage

When the California registration first became law on January 1, 2000, it offered very limited benefits. It was expanded, on January 1, 2002, to include about a dozen benefits. It was again expanded on January 1, 2003 to include scores of benefits and responsibilities. The second expansion of the bill (AB-205) was filed by Assemblywoman Jackie Goldberg (D-Los Angeles). A third expansion (SB-1827) ocured on September 30, 2006, which allowed registered domestic partners to jointly file state income taxes and have their earned income treated as community property for state tax purposes.

The State of California now recognizes health care premiums and expenses for domestic partners as deductible health care expenses. If an employee registers with their same-sex partner through the State of California, there are no state taxes or S.D.I. on the premiums. Federal taxes and F.I.C.A., however, are still applied.


Sharon Stricker, her partner Jackie Goldberg (author of AB-205), and Governor Gray Davis after he signed the expanded bill.
Photo: © 2003, Paul Barwick

Anti-gay activists filed suit against the state, arguing that the domestic partner law illegally undermined the state ban (Proposition 22) on same-sex marriage, which voters passed in 2000. Since the state Legislature does not have the power to amend voter-passed initiatives, the challengers claimed that AB-205 should be struck as an impermissible back door attempt to gut the anti-marriage law.

Judge Loren E. McMaster disagreed. The ban on same-sex marriage says, in its entirety, that “only marriage between a man and a woman is valid or recognized in California.” The judge, in a September 8, 2004 ruling, pointed out that while marriage is a “keystone of civilized society predating government regulation,” the rights and regulations that apply to marriage are constantly changing. The one-sentence voter initiative, he reasoned, referred only to the classification of marriage itself, and did not limit the state’s ability to provide rights and benefits to unmarried couples.

In 2000, when conservatives were campaigning to pass Proposition 22, they repeatedly insisted that the initiative referred only to marriage, and would not block domestic partner rights or other benefit programs. Randy Thomasson, of the Campaign for California Families (CCF), now states “McMaster has trashed the vote of the people who said they want everything about marriage to stay for a man and a woman. The clear and plain reading of these marriage-attacking bills was to create homosexual marriage by another name.” CCF, along with Sen. Pete Knight, appealed the ruling.

On April 4, 2005, a state appeals court held that California’s domestic partner law does not conflict with the initiative that defined marriage as between a man and a woman. The Court of Appeal panel in Sacramento noted that voters who approved Prop. 22 were informed that it was “intended solely to preserve the status of marriage in California for persons of the opposite sex” and weren’t told anything about limiting civil unions or domestic partnerships.

On June 29, 2005, the domestic partner law legal challenge came to a halt when the state Supreme Court denied a hearing to right-wing, conservative, religious groups that had sought to overturn the law. [Knight v. Superior Court, S133961]

On August 1, 2005, the California Supreme Court ruled that country clubs must offer gay members who register as domestic partners the same discounts given to married ones. The court ruled that the policy constitutes “impermissible marital status discrimination.” This decision might also apply to other businesses, such as insurance companies and mortgage lenders.

The case involved the policy at the Bernardo Heights Country Club in San Diego, which allowed only the children, grandchildren and spouses of married members to golf for free. Birgit Koebke, 48, an avid golfer, who pays about $500 a month in membership fees, challenged the policy after being told that her longtime lesbian partner could only play as a guest six times a year while paying up to $70 per round.

While businesses might once have claimed a legitimate business interest for maintaining different policies for married couples and gay members who cannot legally wed, such distinctions are no longer justified under a sweeping domestic partner law that took effect in California on January 1, 2005, the court said.

Writing for a five-judge majority, Justice Carlos Moreno stated:

“The Legislature has made it abundantly clear than an important goal of the Domestic Partner Act is to create substantial legal equality between domestic partners and spouses. We interpret this language to mean that there shall be no discrimination in the treatment of registered domestic partners and spouses.”

The ruling reversed two lower courts that sided with the country club. But the court also said that the lesbian couple, who have been together since 1993 and registered partners since 1998, was not entitled to seek damages “for being subject to discriminatory treatment” before the domestic law kicked in.

On April 12, 2006, the California Supreme Court again refused to hear an appeal challenging the state’s domestic partner law. The high court’s dismissal reaffirmed current legal protections for same-sex couples and their families.

Opponents of domestic partner rights had appealed the January 2006 ruling from the Third District Court of Appeal in Sacramento, charging that California’s law makes domestic partners equivalent to spouses and therefore violates the voter-approved ban on gay marriage, Proposition 22.


Registration Statistics

As of October 2001, 16,000 couples had registered and were able to utilize the expanded status. As of September 3, 2003, more than 22,000 same-sex and senior opposite-sex couples had registered.

Faced with uncertain tax obligations, and fearing other legal or financial obligations, some committed same-sex couples have opted out of the new comprehensive domestic partnership law. They rightly perceive that it offers too few benefits at too high a cost.

As of December 2004, there were 25,525 active domestic partnerships in California. By March 2005, 948 couples registered. At least 241 have ended their legal relationship.

In December 2004, anticipating implementation of the law’s expansion, 1,188 couples dissolved their domestic partnerships. More than 2,500 broke off their legal ties in 2004, compared with 733 in 2003. Several hundred more have terminated their partnerships in 2005.

Some couples dissolved their partnership because the relationship was over. Others, though they dissolved their legal partnership, they are still together. These couples were concerned about issues such as the burden of community debt, and the loss of public benefits.

Under the expanded law, same-sex couples have many of the same state rights and responsibilities as legally married couples, including community property rights and obligations, child custody rights, the right to child support and alimony, extended family leave benefits and mutual responsibility for debts.

There are huge gaps between the state and federal laws regarding the treatment of these domestic partnerships, which can lead to complications. Many registered because they have children and they wanted the legal protections the expansion offered.

However, by offering domestic partnership registration instead of legal marriage, California — like Hawaii and Vermont’s Civil Union — has created an apartheid, with one set of laws pertaining to opposite-sex couples, and another for same-sex couples.
      [See Marrying Apartheid]

The registrations do not have any legal weight in the federal sphere, and, cannot be used for immigration purposes, for instance. To date, no other state has honored this status.

The registration status offers an improved range of protections for same-sex couples who live in California. Once signed up, a registered couple can say they are no longer complete “legal strangers” — but have a legal relationship.


Procedures

Eligibility:

  • Same-sex couples who are 18 or older
  • Opposite-sex couples who are 62 and older
  • Must not be related by blood in a way that would prevent being married to each other in California
  • Must not be married or part of another domestic partnership
  • Must live together
  • Must accept responsibility for each other’s living expenses
$10 fee

The Registration can be obtained from the California Secretary of State’s Web site:
(www.ss.ca.gov/dpregistry)
as well as from the Secretary of State or local county clerk offices.


Key Registration Benefits

When first effective in January 1, 2000, this status provided:

  • A division of property in the event of a break-up
  • An affidavit of partnership that could be used by the California Public Employees Retirement System to extend health coverage to member’s partners
  • Recognition for hospital visitation, but not medical decisions
The benefits offered by this registration were expanded on October 14, 2001, and became effective on January 1, 2002.

The 2002 benefits include the ability to:

  • Make medical decisions for incapacitated partners
  • Sue for wrongful death, as well as seek damages for negligent or infliction of emotional distress
  • Will property to a partner
  • Relocate with a domestic partner without losing unemployment benefits
  • Have an exemption to the state income tax on the health benefits provided to domestic partners
  • File disability benefits on behalf of an incapacitated partner
  • Bequeath property to a domestic partner using a statutory will
  • Adopt a partner’s child using the stepparent adoption process
  • Continue health benefits for surviving partners of government employees and retirees
  • Use sick leave to care for a partner or partner’s child
  • Administer a partner’s estate
The expanded registration also requires health plans to offer domestic partner coverage to businesses and associations similar to coverage offered to dependents of employees and subscribers. This will assist small and medium-sized employers that decide to offer domestic partner benefits to their employees.

In September 2003, the benefits were once again, expanded. This expanded status is scheduled to take effect on January 1, 2005.

Among the 2005 benefits:

  • Partners can ask for child support and alimony
  • Right to health coverage under a partner’s plan
  • Ability to make funeral arrangements for a partner
  • Access to family student housing
  • Bereavement and family care leave
  • Exemptions from estate and gift taxes
  • Authority to consent to an autopsy, donate organs and to make funeral arrangements
  • Prevent courts from forcing a partner to testify against each other in court
  • Ability to apply for absentee ballots on a partner’s behalf
  • Responsible for a partner’s debts
  • Joint income factored into eligibility for public assistance benefits
  • Required to disclose a relationship to avoid nepotism and conflicts of interest
Laws initially passed by ballot measure — which require being amended the same way — will not apply to this status. For instance, a campaign finance law that requires conflict of interest disclosures that won’t apply to domestic partners.

A third expansion (SB-1827) ocured on September 30, 2006, which allowes registered domestic partners to jointly file state income taxes, and have their earned income treated as community property for state tax purposes. The “State Income Tax Equity Act” was sponsored by Equality California (EQCA) and authored by Senator Carole Migden (D-San Francisco).

Also on September 30, 2006, a new law taxing those who register as domestic partners to pay $23 toward domestic violence programs specifically aimed at same-sex couples. The measure is likely the first of its kind in the nation and mirrors a similar surcharge on California marriage licenses that funds battered women’s shelters and other domestic violence services.

A fourth expansion took effect on January 1, 2007. Eight new laws, addressing gay and lesbian issues, which include tax filings, court proceedings, discrimination protections, and funding for domestic-violence prevention among same-sex couples.

Among the 2006 benefits:

  • Allows registered domestic partners to file joint state income-tax returns in 2008
All the 2006 laws were sponsored by Equality California.

On January 3, 2008, California domestic partners won the right to the same property tax breaks as husbands and wives under state law when the state Supreme Court turned down an appeal. The justices left intact an October ruling by the Third District Court of Appeal in Sacramento that allowed registered domestic partners to accept, or inherit, real estate from one another without new tax assessments. The state’s supreme court denied review of the case without comment or dissenting votes.

Under the 1978 initiative — Proposition 13 — property taxes were rolled back to 1 percent of value and limited increases of 2 percent a year. It allowed counties to re-assess property to full market value when it was sold or changed ownership, often leading to a substantial tax increase. The initiative did not define changes in ownership. A 1979 law and subsequent ballot measure specified that transfers of property between husbands and wives at death or divorce, and transfers to children or grandchildren, would not be considered ownership changes, and were therefore protected from tax increases.

Domestic partners were granted the same rights as married couples under state Board of Equalization rules in 2003, and by a state law in 2005. Several county assessors challenged the tax break, however, the Third District Court of Appeal in Sacramento ruled in October that neither Prop. 13, nor subsequent measures, barred lawmakers from granting additional exemptions to changes in ownership. The court noted the Legislature’s declaration that the 2005 law was part of an effort to promote equality for all Californians, regardless of sexual orientation.

Liabilities

  • The Registry data is public information. While this information in not available on-line, it is provided upon request over the phone and by written request.
  • While registered domestic partner public school students are treated like married students for state financial aid — and dependent children of registered domestic partners are generally treated like the dependent children of married couples for state aid — in some cases, a student’s aid could be reduced because the formulas will include the income and assets of both partners in determining how much a family can pay for college. In other cases, the amount of aid could increase.
  • Because the federal system refuses to consider same-sex couples as a family, a student’s eligibility for federal aid remains unaffected.
  • Private schools are not required to recognize the domestic partner status, so they may or may not take the partnerships into account.
  • Because registered domestic partners can not file their state tax returns as single, or head of household, for tax year 2007 and beyond, they can choose “married filing jointly” or “married filing separately,” the same options married couples generally have. However, domestic partners must continue filing their federal taxes as “single” or “head of household.”
  • Californians start their state tax returns by transferring their adjusted gross income from their Federal return, then making certain adjustments. The domestic partner law requires additional adjustments, adding to the complexity, and, likely, the cost of tax preparation. Planning is harder because actions that minimize Federal taxes might not minimize state taxes.
  • The discrepancy in filing status creates many issues that have yet to be resolved, such as whether one partner’s capital losses can offset the other’s capital gains for state taxes. Partners who file jointly also will become potentially liable for each other’s state tax debts and the proper inclusion of all income.
Not a Model for Family Recognition in U.S.

This domestic partnership status does not work as a model for America, because implementing an equivalent legal status to marriage requires duplicating 150-to-350 laws in each state, and more than 1,138 laws on the federal level. The whole idea is completely impractical.
      [See U.S. Federal Laws for the Legally Married]

Further, domestic partnerships are usually not recognized outside of the issuing state. Because of the lack of portability, they create a patchwork legal status as a couple moves or vacations.

Registrations do not have any legal weight in the Federal sphere, and, to date, only California and New Jersey officially recognizes this kind of status from other states.
      [See New Jersey: Domestic Partnership Act]

Section 299.2, was added to the California Family Code, to recognize registrations and Unions from other state:

299.2. A legal union of two persons of the same sex, other than a marriage, that was validly formed in another jurisdiction, and that is substantially equivalent to a domestic partnership as defined in this part, shall be recognized as a valid domestic partnership in this state regardless of whether it bears the name domestic partnership.
It will likely recognize some state registrations for same-sex couples, but not for those of opposite-sex couples.

Also, this code specifically excludes recognizing a legal same-sex marriage. Which means — not only is it blatently oppressive — someone who has a legal marriage would be ineligible to apply for a California Registration, because one of the requirements is that the parties not be legally married.

And if “substantially equivalent” actually means a set of benefits — and not just qualifying for them — it would exclude Hawaii, as it has very few benefits.

While registrations or Unions are an attempt to create equal treatment, they only reinforce a separate and totally unequal status, one we consider to be a manifestation of apartheid.
      [See Marrying Apartheid: The Failure of Domestic Partnership Status]


Differences Between Domestic Partner Registration and Legal Marriage
Registration
  1. Simple, notarized form registration
  2. No ceremony
  3. Office of Town Clerk
  4. Conveys many marriage rights
  5. A quasi next-of-kin status
  6. Must cohabit
  7. Must share finances
  8. Ended by mailing a termination form
Legal Marriage
  1. License required
  2. No ceremony required
  3. License officiated by clergy, court, or justice of the peace
  4. Conveys hundreds of rights
  5. A true next-of-kin
  6. Can live apart
  7. Not required to share finances
  8. Divorce laws apply
Federal rights NOT Covered by Registration
  • Immigration Rights — Ability for a non-U.S. spouse to become a full citizen.
  • Social Security — Ability to collect benefits upon death of a spouse.
  • Federal Taxes — No joint filing. Pay taxes on job benefits.
  • More than 1,138 laws that are triggered by legal marriage [See U.S. Federal Laws for the Legally Married]








Governments that offer Full Legal Marriage
Nations

    Netherlands (2001)
    Belgium (2003)
    Canada (2005)
    Spain (2005)
    South Africa (2005)
    Norway (2009)
    Sweden (2009)
    Iceland (2010)
    Argentina (2010)
    Portugal (2010)
    Denmark (2012)
    France (2013)
    New Zealand (2013)
    Brazil (2013)
    Uruguay (2013)
    New Zealand (2013)
    United Kingdom
      (England, Wales, Scotland) (2013)
    Luxembourg (2014)
    Finland (2014)
    Ireland (2015)
    Colombia (2016)
US States & Territories

    Massachusetts (2004)
    California (2008)
    Connecticut (2008)
    Iowa (2009)
    Vermont (2009)
    New Hampshire (2009)
    District of Columbia (2009)
    New York (2011)
    Maine (2012)
    Washington (2012)
    Maryland (2013)
    Rhode Island (2013)
    Delaware (2013)
    Minnesota (2013)
    Illinois (2013)
    Utah (2013)
    New Jersey (2013)
    Hawaii (2013)
    New Mexico (2013)
    Michigan (2014) - stayed pending legal challenge
    Oregon (2014)
    Wisconsin (2014)
    

    Arkansas (2014) - stayed pending legal challenge
    Pennsylvania (2014)
    Indiana (2014)
    Nevada (2014)
    Virginia (2014)
    Oklahoma (2014)
    Idaho (2014)
    West Virginia (2014)
    Alaska (2014)
    Arizona (2014)
    Wyoming (2014)
    Kansas (2014) - stayed pending legal challenge
    Florida (2014)
    Colorado (2014)
    North Carolina (2014)
    South Carolina (2014)
    Montana (2014)
    Alabama (2015)
    U.S. Supreme Court (June 26, 2015):
      Ruling: All U.S. States must now
      allow same-sex couples the
      freedom of legal marriage.
Native American Tribes

    Coquille Tribe, Oregon (2009)
    Mashantucket Pequot, Connecticut (2011)
    Suquamish Tribe, Washington (2011)
    Confederated Tribes of the Colville Reservation, Washington (2013)
    Leech Lake Band of Ojibwe, Minnesota (2013)
    Little Traverse Bay Bands of Odawa Indians, Michigan (2013)
    Pokagon Band of Potawatomi Indians, Michigan (2013)
    Santa Ysabel Tribe, California (2013)
    Confederated Tribes of the Colville Nation, Washington (2013)
    Cheyenne, Oklahoma (2013)
    Arapaho, Oklahoma (2013)
    Leech Lake Tribal Court, Minnesota (2013)
    Puyallup Tribe, Washington (2914)
    Wind River Indian Reservation, Wyoming (2014)
    Keweenaw Bay Indian Community, Michigan, (2014)
    Colville Confederated Tribes, Washington (2014)
    Central Council of Tlingit, Alaska (2015)
    Haida Indian Tribes, Alaska (2015)

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