Written by attorney Carla Leslie Hartley

How Changes in Domestic Partnership Laws Affect Our Senior Citizens

History of Domestic Partnership in California.

California’s Legislature appears to have forgotten that domestic partnership law initially derived in large part from the wishes of elderly widows and widowers to legalize their current relationships without entangling their estates, as well as from the wishes of same-sex couples to publicly legitimize their relationships.

Widows and widowers, bereft of their lifelong spouses, many without children and grandchildren nearby, fill their days by volunteering and by spending time at senior-centered social events. Others find themselves in assisted living or nursing homes. Not surprisingly, seniors often turn to one another for support, comfort, and companionship. Many choose not to marry, perhaps not wishing to betray the memory of their departed spouse, or not wishing to subject their property -which they intend to leave to their own children — to community property laws.

Because they were not willing to marry, these seniors, often in loving and exclusive relationships for many years, were legally precluded from visiting their loved ones in the hospital, and from sharing medical insurance with one another. Running concurrently with the need of the elderly to have basic rights with their sunset partners was the growing demand of many same-sex couples, similarly involved in long-term, loving and exclusive relationships, for the same type of benefits.

California's first municipal domestic partnership law was passed in 1984. Similar statutes sprouted up in various municipalities over the next decade. Most represented the confluence of interest of these two groups: seniors and same-sex couples.

When the California State Legislature passed the Domestic Partnership Act of 1999 ("Act"), the Legislature stated that this law superseded all existing municipal laws dealing with domestic partnerships. The 1999 Act defined a Domestic Partnership as consisting of "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." Fam. Code, §297(a). The Legislature also set forth standards of eligibility to become "registered domestic partners:" The pertinent requirement for purposes of this article is that either one partner must be over the age of 62, or both partners must be of the same sex. Fam. Code, §297(b).

The Act, hailed by senior citizens' groups and the gay/lesbian lobby, granted limited rights to registered domestic partners: the right to visit the partner in hospital; the right to provide health insurance for the partner; and the right to deduct the partner's medical expenses for tax purposes.

Married with a Wave of theLegislature's Magic Wand

This brief convergence of interests quickly faded. The Act of 1999 subsequently became a springboard for AB 205, the Domestic Partner Rights and Responsibilities Act of 2003. Signed into law by then-Governor Gray Davis, the 2003 Act imposed upon all domestic partners the same rights and responsibilities "as are granted to and imposed upon spouses... upon former spouses... [and] upon a widow or widower." Fam. Code, §297.5 (a)-(c).

These "rights and responsibilities" include, but are not limited to, ownership rights in real property; inheritance rights; responsibility for each other's debts; and a duty to pay support to the partner with a lower income in the event of dissolution. Fam. Code §297.5(k)(1).

Effective January 1, 2005, these rights and responsibilities were imposed retroactively on all persons registered as domestic partners before January 1, 2005, with no differentiation between elderly and same-sex couples. The Legislature provided a small escape clause: They could immediately dissolve the partnership by sending a form in to the Secretary of State, or else they could execute "an agreement... that the partners intend to be governed by the requirements set forth in Sections 1600 to 1620, inclusive... if that agreement was fully executed and in force as of June 30, 2005." Fam. Code, §297.5 (k)(2).

Family Code §§1600-1617 sets forth the standard for enforceable premarital agreements. Section 1620 deals with contracts between married persons.

Problems with the Escape Clause

Family Code §297.5(k)(2)'s escape clause creates four problems.

First, upon receiving notice of the change, seniors who elected domestic partnership over marriage were faced with telling their loved one that the partnership must either be dissolved, or that the parties must enter into a premarital agreement conforming to §§1600-1620. This would be, at best, an awkward conversation to initiate. Dissolving the domestic partnership would place these seniors in the same position they were in before 1999 — unable to visit their loved one in hospital, unable to share medical insurance, and so forth.

Second, parties cannot enter into a prenuptial agreement where they have already unwittingly enjoyed what turned out to be their nuptials. Family Code 4297.5 (k) (1) states: " [A] ny reference to the date of a marriage shall be deemed to refer to the date of registration of a domestic partnership with the state." Furthermore, §1615 requires that the agreement must be signed no less than seven (7) days prior to the union. The Legislature imposed a method of escape that appears to be legally and factually impossible to perform.

Third, Family Code §1620 makes unavailable most agreements which can be made under §§1600-1617. Section1620 provides that "a husband and wife cannot, by a contract with each other, alter their legal relations, except as to property." Obligations of support cannot be contracted away by virtue of §1620, so long as the parties are still married. Further complicating matters is the requirement that married persons contracting with one another must act with "the highest good faith and fair dealing." While it appears reasonable on paper, in practice this enhanced fiduciary duty owed between spouses makes enforcement of what is now an agreement entered into during marriage, incredibly problematic upon their application for dissolution of the domestic partnership.

Fourth, those seniors who now wish to escape their de facto "marriage" face a deadline that has already passed: The agreement had to be "fully executed and in force as of June 30, 2005." Fam. Code, §297.5(k)(2). As a consequence, these seniors have no available means to avoid a "marriage" they deliberately chose not to enter in the first place.

Back Where They Didn't Want to Be

Marriage is a union to be considered seriously. It is a social contract affecting property, support, and inheritance rights. The decision to marry should be each individual's fully conscious choice, not an unforeseen consequence of a preexisting agreement.

Many seniors who entered into a domestic partnership before January 1, 2005 chose that option over marriage because they weighed the pros and cons, and did not wish to risk property in marriage which they wanted to leave to their own children. The problems created by the retroactive application of Family Code §297 et seq. may never be known to the seniors themselves, but may very well create an unintended headache for their intended heirs. While grieving for their parents, these adult children may face contested wills, probate nightmares, and the task of posthumously unraveling their parent's intent.

As for seniors today who wish to have the same courtesies previously available under the initial Act of 1999, without placing their estate and children's inheritance at risk: too bad. The options are no longer available without all the rights and responsibilities of marriage. Seniors considering domestic partnership now need an enforceable prenuptial agreement and advice of legal counsel to instruct them in the best way to isolate and preserve pre-partnership separate property assets for their children's inheritance.

They might as well get married.

Additional resources provided by the author

California Family Code Sections 297-299, 1600-1620, and 4297.5

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