Estate Planning for Registered Domestic Partners

For those who are eligible, registration of Domestic Partners with the California Secretary of State may provide important benefits for you and your partner. To be eligible, you and your partner must meet the following criteria:

  • You are 18 years old or older and a same sex couple or you are 62 years or older and an opposite sex couple;
  • You must not be related by blood in a way that would prevent marriage under California law;
  • You must not be married or part of another domestic partnership;
  • You and your partner must live together; and
  • You must accept responsibility for each other’s living expenses.

As of January 1, 2002, the key benefits of registration as a domestic partner include the following:

Medical Advantages: 1) You may make medical decisions for your incapacitated partner; 2) You may claim an exemption to state income tax on health benefits provided to your domestic partner; 3) You may file for disability benefits on behalf of your incapacitated domestic partner; 4) You may continue health benefits for surviving domestic partners of governmental employees and retirees; 5) You may use your sick leave to care for your domestic partner or the child of your domestic partner.

Legal Advantages: 1) You have standing to sue for wrongful death of your domestic partner; 2) You may relocate with your domestic partner without losing unemployment benefits; 3) You may adopt a partner’s child using the stepparent adoption process.

Estate Planning Advantages: 1) You may leave your property to a domestic partner in your will; 2) You may administer your domestic partner’s estate.

As of July 1, 2003, your domestic partner has additional rights to receive from your estate if you die without leaving a valid Will (known as dying intestate). California Probate Code Section 37 defines a Domestic Partner as one of two persons who have filed a Declaration of Domestic Partnership with the Secretary of State under California Family Code Section 297.

Death of a Domestic Partner results in the termination of the domestic partnership; however, if neither party filed a Notice of Termination with the Secretary of State prior to the death of one of the Domestic Partners, the surviving Domestic Partner has certain rights to the deceased Domestic Partner’s estate if he or she died without leaving a valid Will.

The intestate provisions of California Probate Code Section 6401 provides that the surviving Domestic Partner may receive the same intestate share of the property of a deceased Domestic Partner to which a surviving spouse is entitled to receive from the deceased spouse’s separate property.

California’s intestate plan for distribution to the surviving spouse or Domestic Partner currently:

May be the entire separate property of the decedent if there are no living issue, parents, siblings, or nieces/nephews of siblings of the decedent.

May be one half of the decedent’s separate property if he or she had either one child living at the time of death, had grandchildren living from a deceased child, or had no issue, but had parents (or issue of parents) living.

May be one third of the decedent’s separate property if he or she had more than one child living at the time of death, or had one child living plus grandchildren living from a deceased child, or had grandchildren living from more than one deceased child.

Note that the above law is effective only if the domestic partners do not have a will, trust, or other estate plan in place. If domestic partners do not wish to have their property distributed as provided above, I recommend that they see an estate planning attorney to assist them with the creation and establishment of a living trust, will, or other estate plan that will achieve their goals of leaving their property to whom they want, the way they want, and when they want.

TERMINATION OF DOMESTIC PARTNERSHIP

Under existing law, you or your domestic partner may terminate your domestic partnership in the following ways:

  • You or your partner marries while you are registered as a domestic partnership;
  • You or your partner sends to the other, by certified mail, a written notice which terminates the domestic partnership; or
  • You and your domestic partner no longer share a common residence.

In all of the above cases, you, or your domestic partner, must immediately file with the Secretary of State, a Notice of Termination of Domestic Partnership. Doing so will establish an actual date of termination. The date becomes important in an estate planning context because failure to file such notice may result in your ex-domestic partner being able to inherit from your estate if you were to die after actual termination but before formal notice is given to the Secretary of State. If, however, you or your domestic partner marry or no longer share a common residence, neither you nor your former domestic partner may inherit from the other.

Registration forms may be obtained from the Secretary of State’s website at www.ss.ca.gov or from the local county clerk’s office. Registration requires notarization of your signature and a filing fee of $10.