The New World of Same-Sex Marriage in California: Is Marriage and/or Domestic Partnership Right For You?

As of January 2005, state-registered domestic partners in California were granted all the rights and obligations of marriage – under state law. Then, in June of 2008, lesbian and gay couples were allowed to legally marry in California – regardless of where they resided. The California Supreme Court had issued a landmark decision, striking down the state ban on same-sex marriage as unconstitutional, and refusing to postpone the implementation of their decision. This was a powerful victory for our community – but at the same time, it raised many complex legal questions that every lesbian and gay couple had to consider.

Then, to our great dismay, California’s voters passed a constitutional ballot initative in November 2008, which re-instituted the ban on same-sex marriage. Supporters of the right to marry immediately filed a petition with the California Supreme Court, arguing that because the Court had already ruled that we had a constitutional right to marry, this initiative was itself invalid. California law already has established that an initiative that would fundamentally change the constitution can only be put on the ballot by the legislature, which didn’t happen here.

Unfortunately, in May 2009 the California Supreme Court upheld Proposition 8, and the marriage door has now been closed. The Court ruled that marriages performed in California during 2008 would remain valid and recognized, but the justices did not rule one way or the other on the validity of non-California marriages performed prior to November 2008. And, the access to marital benefits and burdens as a state-registered domestic partner remains open to all same-sex couples.

Because of the many legal and financial uncertainties surrounding same-sex marriage, especially regarding the present lack of federal recognition, couples are strongly encouraged to consult with an attorney prior to registering as domestic partners in California. Most attorneys also recommend that couples that married out of state last year – or are considering marrying out of state now -- should be sure to state-register as domestic partners, so that they are protected by the rights and obligations of marriage even if their marriage is not recognized.

Here is a summary of the most important issues couples should consider in making their decision; for further information, check out the websites of the National Center for Lesbian Rights (www.nclrights.org), Lambda Legal Defense (www.lambdalegal.org), or Nolo Press (www.Nolo.com). If you have other questions, especially if you reside outside of California, it makes sense to consult with a local attorney before making any marriage decisions. A comprehensive review of these issues can be found in my new book, Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions (Nolo Press, 2009).

What are the major implications of registering as domestic partners in California?

If you are residents of California, all state-imposed rights and responsibilities of marriage will apply to you, effective as of the date of your registration. If you are already state-registered as domestic partners, your “date of marriage” is your date of registration, not any later marriage date. These rights and responsibilities include joint responsibility for many debts, sharing of income earned after your registration or marriage, potential liability for spousal support, and in most instances, processing a dissolution through the family law courts. A summary of these rights and responsibilities is included at the end of this page.

If you are not residents of California, or if you relocate out of California, you may or may not be subject to the state rules of marriage – that issue is unresolved in most states. Most of the New England states and Iowa will honor your marriage, but the rules in the other states are not yet resolved. And, if your relationship breaks up, you may need to move to California for at least six months in order to file a dissolution petition, unless you live in one of the marriage of domestic partnership recognition states. Because it may be uncertain for some time as to whether your marriage is or is not recognized in your state, you should give serious consideration as to whether or not you want to take on the risks of this uncertainty.

What is the effect of the constitutional amendment to ban gay marriage?

The constitutional amendment that was on the ballot in California in November 2008 passed by a narrow marriage, and it declared all same-sex marriages invalid. If you married in California before that election your marriage is still valid – otherwise it would be prudent to state-register as domestic partners if you want to be treated as married in California.

If you are already registered as domestic partners, can you get married now?

There is no prohibition against marrying outside of California if you are state-registered domestic partners, as long as you are marrying your present partner! Marrying your partner will not significantly alter your legal rights and responsibilities – you are already subject to the state laws of marriage, and the federal government is unlikely to recognize your partnership or your marriage. But marrying now can create confusion as to your “date of marriage,” and you probably should consult with an attorney about that issue.

What does it mean to be married or state-registered in California, but not have your marriage or partnership recognized by the federal government?

For all state law purposes, you will be treated as married if you are state-registered as domestic partners. That covers marital property laws, debt liability, wrongful death protection, presumed parentage of your children, intestate succession protection, and a wide variety of conservatorship and medical authority provisions – and the duty to file your state income taxes as a married person.

As a federally-single person, however, you will not obtain any of the federal tax benefits (and you must file your state taxes as a single person), and you will not have any protections of Social Security, immigration, or federal retirement benefits. Because of the lack of federal recognition, you could suffer serious tax discrimination penalties, arising out of the federal taxation of any transfers of assets between you and your partner.

What if we got married in Canada or Massachusetts? Is our marriage now recognized in California?

While the Court did not expressly address this issue, the implication of their earlier marriage decision would be yes, your marriage would be valid in California, so long as the marriage took place before November 2008. That means that you would subject to all the marital laws of California, and it also means that if your relationship breaks up you would be able to obtain a legal dissolution in California. And, if you are already married (as opposed to domestically partnered), you cannot marry again in California – since you must be “unmarried” in order to marry. If you marry after November 2008 out of state, your marital status is not so clear.

Given all the uncertainty about marriage recognition in light of the Proposition 8 decision, it probably makes most sense for you to also state-register, so you can be certain that the rules of marriage apply to your relationship.

Because of the uncertainties caused by the ballot initiative, it may make most sense to register as domestic partners at the same time you get married, so that you are still covered by state marital law even if your marriage is invalidated by the amendment. 

What are the basic rules of being married or domestically partnered in California?

1.  All the California marital rules about assets and property apply to married or registered couples, as of the date of their registration or marriage (whichever happened earlier!).

a.  All income and all savings accumulated from earned income are presumed to be equally owned (community property), regardless of titling of deed, asset, or account; a written agreement is generally required to transmute property from community to separate (except for down payment on a residence or other traceable contributions to the acquisition or improvement of a joint asset or property)

b.  Community property rule applies to savings accounts, stock options, and all financial accounts, real property acquired, businesses, and IRA/pension benefits

c.  Pre-registration (or pre-marital) assets and gifts or inheritances are presumed to be separately owned, with complex statutory rules for allocating mixed assets/debts

d.  Pre- and post-registration/marital debts likely to be joint debts, regardless of debtor

e.  Lesser-earning partner is eligible for post-separation spousal support as determined by Family Law Court judge, based upon statutory factors

f.  Fiduciary duty is imposed on partners/spouses, with potential liability for mis-management or wrongful transfer of community property assets

2.  Dissolutions require judicial process, except for registered couples with no disputes, few assets, no real property, and no children

a.  Statutory procedures for filing of dissolution petition, except for summary termination of registered partners through Secretary of State (if eligible)

b.  Family Court handles adjudication of property and debt disputes

c.  Family Court handles adjudication of post-separation support claims (both temporary and permanent support)

d.  For couples with pre-registration/marital assets/debts held in separate names: separate lawsuit possible under non-marital rules, possibly consolidated with Family Law process

3.  Registering or marrying can raise many complex and new legal questions.

For couples registered before January 2005, the "date of marriage" is the registration date -- not January 1, 2005, though there may be challenges to retroactivity provisions.

Will any federal tax benefits and burdens apply? Probably NOT as to federal tax law (and definitely not as to filing of federal returns), but there may be some exceptions arising upon dissolution or death. As for state law, partners are treated as if married, and must file state tax returns as such – either jointly or separately.

Will couples that registered with their partner out-of-state (i.e. Vermont Civil Unions) be covered automatically if they reside in California? YES — but not those who registered with local registries only.

Will partners registered with or married to someone else out-of-state (i.e. Vermont Civil Unions) need to terminate that registration/marriage before registering or marrying with another partner as DP in California? YES — and they will be able to do so in California courts!

Will California's marital rules be applied to registered or married couples that live out-of-state, or couples who live in California and then relocate? Outcome is uncertain at this time.

Will a Canadian or Massachusetts marriage be valid in California, either for purposes of termination or awarding assets or spousal support?  Probably yes, so long as the ballot initiative is thrown out.

Four Options for California Couples

1.  Remain unregistered and unmarried, and organize all property and debt issues by title and account name, without executing any formal asset or property agreement

2.  Remain unregistered and unmarried, but execute property co-ownership and/or cohabitation agreement to address assets, debts, and post-separation support

3.  Register (or remain registered) or get married – or to be practical, both -- and abide by all community property rules, generally without the need for an agreement (though some couples may still need a written agreement to address certain pre-registration/marital assets and debts, or a transmutation agreement for specific assets)

4.  Register (or remain registered) or get married, and execute registration/marital agreement to modify the community property rules regarding assets and debts, and to limit (to some degree) obligations for post-separation support

Making the Decision

FIRST, decide whether registration or marriage is vital for your relationship (i.e. insurance or other private benefits, step-parent adoption procedures, property tax implications, etc.) and confirm whether marriage will be possible given the current legal uncertainties. 

SECOND, decide whether registration/marriage is possibly harmful to your situation (i.e. disqualification from benefits, exposure to partner's debt, privacy issues).

THIRD, if registration and/or marriage is neither vital nor harmful, decide whether you prefer registration and/or marriage (with or without private agreements limiting the community rules) or non-registration/unmarried (with private agreements providing for property and debt protections; until the legal status of the ballot initiative is worked out, domestic partnership registration is your only option here in California, and marriage is only available in Connecticut, Massachusetts or Canada.