In the U.S., there are a few different ways to make a formal commitment to your partner. Same-sex marriage became legal in all states in 2015, meaning all couples are entitled to get married. Some states recognize civil unions as an alternative to marriage. Other states, including California, Maine, Nevada, Oregon and Washington, recognize domestic partnerships. In California, a domestic partnership is available to all same-sex couples and certain opposite-sex couples.
Domestic Partner in California
What is a domestic partnership in California? Basically, it is a relationship between two adults who are living together and committed to each other, but not married to each other – or anyone else. Many people choose to have a domestic partnership because they do not believe in traditional marriage or because they had no alternative until same-sex marriage became legal in California in 2008.
The California Family Code defines domestic partners as two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring. A registered domestic partnership is a legally binding contract in California.
Eligibility for Domestic Partnership
To be eligible for a domestic partnership in California, you and your partner must be over 18, or if one or both of you are under 18, you must have the written consent of your parents or guardian. You must also obtain a court order granting permission to establish a domestic partnership.
You are not eligible for a domestic partnership if you are a blood relative of your partner or if either of you are married to, or have a domestic partnership with, someone else that has not been dissolved, terminated or nullified. Additionally, you must be of the same sex or, if of the opposite sex, one of you must be at least 62 years of age. You do not need to be residents of California to register a domestic partnership in California.
Registering a Domestic Partnership
You may register a domestic partnership in California by completing a Declaration of Domestic Partnership Form NP/SF DP-1. Both partners' signatures must be witnessed by a notary. The form is submitted with the appropriate fee to the California Secretary of State. As of July 2018, the fee for submitting a Declaration of Domestic Partnership form is $10 for opposite-sex partners and $33 for same-sex partners. The additional $23 paid by same-sex partners is used to develop and support a training curriculum specific to lesbian, gay, bisexual and transgender domestic abuse support service providers who serve that community in regard to domestic violence. It also goes to provide brochures specific to lesbian, gay, bisexual and transgender domestic abuse.
If you wish, partners may file a Confidential Declaration of Domestic Partnership, which is not public information. If you or your partner is under 18, you must have the written consent of your parents or guardian and obtain a court order granting you permission to establish a domestic partnership. You must file a certified copy of the order with the California Secretary of State, together with your Declaration of Domestic Partnership. As part of the registration process, one or both partners can change their middle or last names on the Declaration of Domestic Partnership form.
Domestic Partner Benefits
Domestic partners in California have the same rights, responsibilities, benefits and protections as those afforded to married spouses in California. These include rights and benefits derived from statutes, common law, administrative regulations, court rules and government policies. Domestic partnerships are not recognized by the federal government, which means many benefits given to married spouses under federal law are not given to domestic partners in California.
Marriage gives couples many federal benefits, including inheritance rights, rights to spousal support, division of marital assets upon divorce, immigration sponsorship and Social Security, pension and veteran's benefits. However, wherever California law adopts or relies upon federal law in a way that otherwise would cause registered domestic partners to be treated differently than spouses, registered domestic partners in California are treated by state law as if federal law recognized a domestic partnership.
Some couples in registered domestic partnerships in California choose to get married too, in order to gain access to all the federal rights of marriage and have their legal union recognized in all states. There is nothing to stop couples of the same sex or opposite sex from getting married in California if they are already in a domestic partnership together. Every couple should make this decision based on their unique needs.
Making Important Decisions
In California, parties who enter into a registered domestic partnership have the same rights as married spouses to make medical and emergency decisions for each other. However, since many states don’t recognize domestic partnerships, registered domestic partners may not have this right when they travel or move from California.
Rights to Children
Registered domestic partners are the legal parents of a child born to them after January 1, 2005. This gives them both the same rights and responsibilities afforded to married parents under California Family Law Code. These include the right to request custody and visitation – known as parenting time – orders from the court in the event of a termination of the domestic partnership, as well as the responsibility to support the child financially. And, registered domestic partners in California have the same rights as a stepparent to participate in adoptions of a child of a partner.
Having a legally recognized parent also gives the child certain rights and privileges, including financial support from both parents, legal documentation identifying both parents, having both parents' names on the birth certificate, access to family medical records and history, and the right to inherit property from either parent.
Eligibility for Health Coverage
In some states, employers may choose to extend eligibility for health coverage to domestic partners, but it is not required unless mandated by state law. However, California has one of the strictest requirement of all the states. Under the California Insurance Equality Act, any group healthcare policy or plan that covers spouses must extend its eligibility to registered domestic partners. Registered domestic partners in California also have rights to sick leave and disability benefits, under both public employee and private plans, just as married spouses do.
Employers in California are not legally obliged to require documentation of domestic partner eligibility. An employer can either define their own requirements or rely on an existing legal document, such as the state domestic partner registration form. Some employers create a domestic partnership affidavit, defining their eligibility requirements.
Tax, Insurance and Social Security
Domestic partners in California must file separate federal tax returns. Transfers of assets, funds or inheritances and health insurance benefits provided to a domestic partner are considered taxable income for federal purposes. However, domestic partners in California may file joint state tax returns. The same tax rules for filing status, community property incomes and other requirements that apply to married spouses apply to registered domestic partners.
In California, domestic partners are entitled to tax benefits relating to medical expenses and health insurance benefits that occured on or after January 1, 2002. These include an exclusion from gross income for employer-provided accident and health insurance, an exclusion from gross income for medical expense reimbursement if the expense was not previously deducted, long-term health care insurance deductible as a medical expense and a deduction by self-employed individuals for health insurance costs.
Federal tax law does not allow the same benefits for domestic partners. Domestic partners are not entitled to receive Social Security or other marriage-based federal benefits based on each other's employment. On the plus side, individuals receiving Social Security benefits don't get their benefits decreased when they enter into a domestic partnership the way married spouses do.
Omitted Spouse Statute
If a domestic partner dies and leaves a will or trust that doesn't provide for the other domestic partner, the surviving partner can have a probate attorney file a petition with the probate court stating that their deceased domestic partner had created a will or trust and that they are not provided for under that will or the trust. The surviving domestic partner is entitled to a share of the estate, which may include proceeds of a life insurance policy, pension plan or IRA, just the same as a surviving married spouse in the same situation.
Terminating a Domestic Partnership
If you want to officially terminate a domestic partnership in California, you can file a Notice of Termination of Domestic Partnership Form NP/SF DP-2 with the California Secretary of State, provided certain conditions are met. There must be no children of the relationship born before or after registration of the domestic partnership or adopted after registration of the domestic partnership. Neither domestic partner may, to their knowledge, be pregnant. Additionally, the domestic partnership must have been registered within the last five years, and each partner must waive any rights to support by the other partner.
After filing the Notice of Termination of Domestic Partnership form, either party can withdraw it within six months. The partnership is considered dissolved when that time period has passed. This method of termination is generally easier and faster, as it does not require involvement of the court in deciding issues relating to finances.
If any of the required conditions for filing a Notice of Termination of Domestic Partnership form are not met, a domestic partnership can only be dissolved by initiating a dissolution proceeding in California Superior Court. This terminates a registered domestic partnership in a process similar to a divorce for married spouses, dealing with the division of assets, alimony and issues relating to children of the relationship, including child custody and child support.
To initiate a court action, one party should file a Petition for Dissolution of Registered Domestic Partnership Form FL-103 with the court. The other party files Response form FL-123, and both sides file additional paperwork and motions as required. The parties negotiate a settlement or proceed to trial in a California court. The registered domestic partnership won’t be dissolved until the six-month period has passed.
If you terminate a registered domestic partnership in California, notify your employer of this change in circumstances as soon as possible and in accordance with your employer's requirements. Many employers require employees to notify them within 30 days of the dissolution of the relationship.
Effect of Same-Sex Marriage Ruling
On June 26, 2015, in the case of Obergefell v. Hodges, the United States Supreme Court ruled that the fundamental right to marry is guaranteed to same-sex couples, and that states must recognize same-sex marriages from other states. This did not change or overrule any of the California Family Code sections related to registered domestic partners.
Domestic partnership registrations are different from marriage licenses, and the California Secretary of State's office continues to process Declarations of Domestic Partnership, Notices of Termination of Domestic Partnership and other related filings as permitted by state law.