BILL ANALYSIS SENATE JUDICIARY COMMITTEE Martha M. Escutia, Chair 2001-2002 Regular Session AB 25 A Assembly Member Migden B As AmendedMay 31, 2001 Hearing Date: July 10, 2001 2 Civil Code; Code of Civil Procedure 5 Family Code; Government Code; Health and Safety Code; Insurance Code; Probate Code; Revenue and Taxation Code; Unemployment Insurance Code GMO:cjt SUBJECT Domestic Partnerships: New Rights DESCRIPTION This bill would expand California law on domestic partnerships by (1) allowing domestic partnerships of opposite-sex couples where only one partner is over the age of 62 and is eligible to receive social security old-age benefits, and (2) by conferring on domestic partners various rights, privileges and standing conferred by the state on married couples. Among the rights, privileges, and standing this bill would provide domestic partners consistent with the rights, privileges and standing of spouses are: the right to recover damages for negligent infliction of emotional distress; the right to assert a cause of action for wrongful death; the right of a domestic partner to adopt a child of his or her partner as a stepparent; the right to receive continued health care coverage (including the right of his or her child to receive coverage) because he or she is a surviving beneficiary of the deceased employee or annuitant; the right to make health care decisions for an incapacitated partner; the right to nominate a conservator, be nominated as (more) AB 25 (Migden) Page 2 conservator, oppose, participate, file various petitions in the conservatorship, and to receive all notices relevant to conservatorship proceedings, including temporary conservatorships, involving his or her domestic partner; the right to receive an allowance from the estate of a conservatee who is his or her domestic partner, to pay for basic living expenses during the conservatorship, in the same manner as a spouse and the minor children of a conservatee are entitled; the right to jointly purchase real property with a conservatee who is his or her partner and to receive gifts from the conservator upon court approval; the right and priority of his or her nominee to be appointed conservator equal to the right and priority of a nominee of a spouse; the right to be treated the same as a spouse in a statutory will; the right to inherit property from a deceased partner in the same manner as a spouse inheriting under the intestate succession laws of the state; the right to be appointed as administrator of decedent's estate, in the same manner and priority as a spouse; if he or she predeceased the decedent, the right of his or her children, parents, brothers and sisters to be appointed as administrator of decedent's estate, in the same manner and priority as the children, parents, brothers and sisters of a predeceased spouse; the right to be treated as the spouse of a taxpayer for purposes of determining personal state income tax liability; the right to use employee sick leave to attend to an illness of his or her partner or his or her partner's child and the right not to be discriminated against for the use of sick leave to attend to an illness of his or her partner or partner's child; the right to unemployment insurance benefits for leaving employment to join his or her domestic partner at a remote location to which commuting to work is impractical and a transfer of employment is not available; the right to file a claim for disability benefits for his or her partner, in the same manner as a spouse may file such a claim. BACKGROUND AB 25 (Migden) Page 3 AB 26 (Migden, Chapter 588, Statutes of 1999) statutorily recognized domestic partnerships in the state of California and provided the manner by which such partnerships may be formed, registered, and terminated. AB 26 gave limited legal effect of such partnerships and provided no rights to domestic partners other than to allow hospital visitation rights to domestic partners and health benefits to domestic partners of public employees. In the same legislative session, Governor Davis vetoed SB 75 (Murray). SB 75 would have enacted the same domestic partnership qualification, registration and termination provisions and conferred hospital visitation rights to domestic partners as AB 26, would have validated out-of-state domestic partnerships meeting the qualifications of those formed in this state, would have given the same rights and priority to domestic partners as those to which spouses are entitled in conservatorship proceedings, and would have revised the statutory will form to treat domestic partners the same as spouses. The Governor's veto message stated that SB 75 was "overly broad" and that he had already signed AB 26 with its narrower scope. In 2000, several bills were introduced as a package to extend to domestic partners various rights, privileges and standing conferred by law to married couples. Those bills are: AB 2211 (Kuehl), which would have allowed domestic partners to recover damages for negligent infliction of emotional distress and wrongful death of their partners and the right to make funeral arrangements and autopsy decisions, conferred various rights relating to conservatorships, revised the statutory will form and recognized as valid out-of-state domestic partnerships. This bill was placed on the Assembly inactive file in June, 2000. AB 2047 (Romero), which would have given domestic partners the right to intestate succession and priority in appointment as administrator of their deceased domestic partner's estate. This bill died in the Assembly Appropriations Committee. AB 1990 (Romero), which would have given domestic partners the same right as spouses to make medical AB 25 (Migden) Page 4 treatment decisions for an incapacitated partner. This bill was placed on the Assembly inactive file in June, 2000. Also in 2000, AB 2421 (Migden), which would have extended domestic partnership qualification to couples of opposite sexes, where only one of the partners is 62 years of age and qualifies for old-age social security benefits, was passed by the Legislature, but was vetoed. CHANGES TO EXISTING LAW 1. Existing law defines "domestic partners" as "two adults who have chosen to share one another's lives in a intimate and committed relationship of mutual caring" and who file a Declaration of Domestic Partnership with the Secretary of State. [Family Code Section 297.] The law allows domestic partnerships only to same-sex couples over the age of 18, or to opposite-sex couples over the age of 62 and who qualify for old-age social security benefits, who are not blood relatives, not married to others, not members of another domestic partnership, and who share a common residence and agree to be jointly responsible for each other's basic living expenses incurred during the partnership. A domestic partnership, once registered, may be terminated by either party by sending a notice to the other party, and filing a Notice of Termination of Domestic Partnership to the Secretary of State. A domestic partnership also is terminated if one partner dies or marries. This bill would allow domestic partnerships of opposite sex couples, where one of the domestic partners is under the age of 62 and the other is over 62 years and is eligible for old-age social security benefits. 2. Existing case law recognizes the right of a third party to recover damages for negligent infliction of emotional distress and imposes certain requirements for such a third party to have standing to recover damages against one who injures another. One of those requirements is a "close family relationship" between the plaintiff and the injured victim. [ Dillon v. Legg (1968) 68 C.2d 728, affirmed and followed in Thing v. La Chusa (1989) 48 C. 3d 644 and Wilks v. Hom (1992) 2 C.A. 4th AB 25 (Migden) Page 5 1264.] (See Comment 2.) This bill would give a domestic partner the same right as a spouse to recover damages for negligent infliction of emotional distress. 3. Existing law provides that an action in wrongful death may be brought by the decedent's surviving spouse, children, and issue of predeceased children, and if there is no surviving issue of decedent, the persons, including the surviving spouse, who would be entitled to the property of decedent by intestate succession. This bill would give the same right to bring a cause of action in wrongful death to the domestic partner of the decedent. 4. Existing law confers various rights to the surviving spouse of a decedent in the areas of estate administration and intestate succession, and to the children, parents, and issue of predeceased children of a predeceased spouse. This bill would provide the same intestate succession rights to a domestic partner as the surviving spouse of decedent, and the same priority to be appointed as administrator of decedent's estate. The bill would confer the same rights to the children, parents, and issue of predeceased children of a predeceased domestic partner of a decedent as are conferred by existing law on children, parents, and issue of predeceased children of the predeceased spouse of a decedent. 5. Existing law provides for a statutory will form, which, if filled out by a declarant and witnessed by two qualified witnesses, serves as a valid will in the state. The statutory will form provides for succession to the declarant's property, upon his or her death, by the spouse of the declarant as a first choice. This bill would include a domestic partner in the same category as a spouse in such statutory will form. 6. Existing law governing conservatorships provides the spouse of a conservatee or proposed conservatee certain AB 25 (Migden) Page 6 rights, including the right to nominate and be nominated as conservator, to be notified of and participate in all conservatorship proceedings, to be given priority in being appointed as conservator, to receive an allowance from conservator's estate for debts incurred to pay for the necessaries of life and for such payment to have priority over other types of estate expenses, to require and contest accountings by the conservator, and to terminate the conservatorship of his or her spouse-conservatee. This bill would confer on a domestic partner the same rights as are provided in law for the spouse of a conservatee or proposed conservatee. Existing law , the Health Care Decisions Law, provides for the creation of advance health care directives and the appointment of a surrogate health care decision maker when a patient is in a health care facility and the patient is incapacitated. This bill would confer on a domestic partner "the same authority as a spouse" to make a health care decision on behalf of an incapacitated partner. 7. Existing law governing health care service plans and disability insurance carriers that provide hospital, medical, or surgical expense benefits require these plans or disability insurers to offer coverage to employers or guaranteed associations for the spouse of the employee or subscriber, subject to the same terms and conditions provided to a dependent of the employee or subscriber. This bill would require health care service plans and disability insurance carriers to also offer coverage to employers or guaranteed associations for the domestic partner of the employee or subscriber, under the same terms and conditions provided to a dependent of the employee or subscriber. The bill would allow a health care service plan or group disability insurance to verify the status of the domestic partnership by providing to the plan or insurer a copy of a valid Declaration of Domestic Partnership or an equivalent document issued by a local agency of this AB 25 (Migden) Page 7 state, another state, or a local agency of another state under which the partnership was created. 8. Existing law requires an employer who provides sick leave for employees to permit an employee to use in any calendar year the employee's accrued and available sick leave of no less than the sick leave accumulated over six months at the employee's current rate of entitlement, in order to attend to an illness of a child, parent or spouse of the employee, with limitations. An employer is prohibited from denying an employee to use sick leave, or to discharge, threaten to discharge, demote, suspend, or in any way discriminate against an employee for exercising the right to use sick leave to attend to the illness of a child, parent, or spouse. A violation of this prohibition subjects the employer to civil penalties, in addition to other rights and remedies provided to employees under state law. This bill would require the employer to permit the employee to use such sick leave to attend to the illness of a domestic partner. 9. Existing law treats a spouse as a dependent for purposes of calculating personal income tax liability under the Revenue and Taxation Code. This bill would treat a domestic partner the same as a spouse for purposes of determining state personal income tax liability. 10. Existing law entitles an employee to unemployment insurance benefits if he or she left the employer's employ to accompany or to join his or her spouse at a place from which it is impractical to commute to the place of employment and to which a transfer of employment is not available. For unemployment insurance purposes, leaving employment under this condition is deemed to be good cause and "spouse" includes a person to whom marriage is imminent. This bill would extend the same entitlement to a domestic partner who leaves an employment under the same conditions. AB 25 (Migden) Page 8 11. Existing law permits the spouse of a person who would be eligible to receive disability benefits under the unemployment insurance law but who is mentally unable to make a claim for these benefits, to file a claim for the benefits in the absence of any other legally authorized representative of the person. This bill would give the same right to file disability benefit claims to the domestic partner of a person entitled thereto. 12. This bill would make conforming changes consistent with the substance of the above provisions. COMMENT 1. Sponsor states recent polls indicate strong public support for expanding rights of domestic partners This bill is sponsored by the California Alliance for Pride and Equality and is strongly supported by a long list of diverse groups, such as the American Civil Liberties Union, the California Labor Federation, AFL-CIO, the California Professional Firefighters, the California School Employees Association, the Consumer Attorneys of California, Cisco Systems, Congress of California Seniors, Older Women's League of California, People for the American Way, several churches and various public agencies, cities, and counties. It is opposed mainly by several churches and religious-affiliated groups, such as the Campaign for California Families, the Capitol Resource Institute, the Christian Coalition of California, the Traditional Values Coalition, and the Committee on Moral Concerns. In support of her bill, the author states: "Until the enactment of AB 26 in 1999, same sex couples and their families received no recognition under California law. Even with the enactment of the domestic partner registry with hospital visitation rights and health benefits for public employees, few substantive benefits are available to domestic partners that register. This bill would extend to domestic partners substantive legal and economic benefits that married AB 25 (Migden) Page 9 spouses enjoy. These are basic protections? and other important rights." The sponsor of AB 25 points to a 1997 poll that showed "a strong majority of Californians (ranging from 59% to 67%) support domestic partners living together in a loving and caring relationship to have many of the same rights married couples enjoy, including medical power of attorney, conservatorship, and financial dependence status granting domestic partners such benefits as pensions, health and dental care coverage, family leave and death benefits." Also cited by the sponsor is a Decision Research poll conducted in 2000 which shows that "a majority of California voters believe that gay and lesbian couples are entitled to basic protections." The results of this poll, the sponsor claims, show that "69% of the voters believe that gay and lesbian couples suffer obstacles and hardships because they lack the legal protections, benefits, and responsibilities currently afforded by state law to legally married different-sex couples." Proponents also cite several editorials written in the wake of the passage of Proposition 22 in 2000 to not recognize gay marriages as valid marriages. The San Francisco Examiner, for example, noted that Proposition 22's "backers promised that it was not an opening wedge to deny gays other rights. Taking them at their word, we invite them to join a crusade to obtain those rights - to gain for gays and their partners the same rights they would enjoy if they were married, only without the marriage ceremony." ["Alternative to gay marriage: Proposition 22 denies legal recognition to same-sex marriages, but the fight for equality for gay couple's shouldn't stop," San Francisco Examiner, March 10, 2000.] The San Jose Mercury, issuing an opinion on AB 25, stated that "[t]oo few benefits flow from [domestic partner] registration. It doesn't, for example, give one partner any rights to inherit the other's property when there's no will. One positive outcome of the debate over Proposition 22 was that Californians told pollsters that they supported legalizing other protections for gay AB 25 (Migden) Page 10 couples. Now it's time for Californians to make good on that." ["Second Step Toward Equality," San Jose Mercury News, January 2, 2001.] 2. Damages for negligent infliction of emotional distress: domestic partners and opposite-sex unmarried cohabitants One of the principal arguments in favor of enacting the domestic partnership law in California is that unmarried cohabitants of opposite sexes have the option of getting married and thus obtain legal rights, privileges and standing, while same-sex couples may not be validly married. This bill would confer on domestic partners most of the rights recognized under the law that pertain to married couples, except for community property rights. (See Comments 4, 5, and 6.) This bill, however, also would confer one right on a domestic partner that is an extension of the right of a spouse to recover damages for negligent infliction of emotional distress (NIED). This right is not a statutorily created right but one created by case law over many years that recognizes a foreseeable "duty" owed by a defendant to a spouse (or other close family member) of an injured victim. This right has been extended to allow recovery by an "innocent bystander" for example, or by a mother who should have been expected by the defendant to be nearby and who will, upon learning of the accident that killed her son, suffer emotional trauma. [ Dillon v. Legg (1968) 68 C. 2d 728.] Thus, in Dillon the court enumerated certain factors that a plaintiff must meet in order to recover damages from the perpetrator of the injury. One of those factors is that the plaintiff must be one with a "close family relationship" with the injured victim. Subsequent cases applying Dillon refined those factors to allow recovery for damages for emotional distress caused by observing the negligently inflicted injury of a third person "if, but only if, said plaintiff: (1) is closely related to the injured victim; (2) is present at the scene of the injury-producing event at the time it occurs AB 25 (Migden) Page 11 and is then aware that it is causing injury to the victim, and (3) as a result suffers serious emotional distress - a reaction that would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances." [ Thing v. La Chusa (1989) 48 C. 3d 644, 668.] In Elden v. Sheldon (1988) 46 C. 3d 267, the Court clearly rejected liability of a defendant for NIED to a plaintiff who sought recovery for damages, alleging that he was the killed victim's "de facto spouse," that he had an "unmarried cohabitation relationship" with the victim "which was both stable and significant and parallel to a marital relationship." The court affirmed a demurrer granted by the lower courts and the entry of judgment against plaintiff. The Elden court, in rejecting liability, stated that while a few cases have allowed recovery where the plaintiff and victim shared a relationship that was the functional and emotional equivalent of a family relationship, Dillon as well as a number of policy reasons called for the result (rejection of the claim). Those policy reasons enumerated in Elden are: 1) the state has a strong interest in the marriage relationship, and to the extent that unmarried cohabitants are granted the same rights as married persons that interest is inhibited. [46 C. 3d 274.] 2) allowance of the cause of action would require an inquiry into the relationship, which would call for "a massive intrusion into the private life of the partners." [ Id , at 276.] 3) it is necessary to limit the number of persons to whom a negligent defendant owes a duty of care. "?[W]e cannot draw a principled distinction between an unmarried cohabitant who claims to have a de facto marriage relationship with his partner and de facto siblings, parents, grandparents or children. The 'problems of multiplication of actions and damages' that would result from such an extension of liability?would place an intolerable burden on society." [ Id , at 277.] This bill would entitle domestic partners "to recover damages for negligent infliction for emotional distress AB 25 (Migden) Page 12 to the same extent that spouses are entitled to do so under California law." [Proposed new Section 1714.01 of the Civil Code.] Since Elden is still good law, if this bill were enacted, it would 1) bypass the courts of this state having to interpret the application of the Dillon (and its progeny) rules to a domestic partner and to rule on whether the domestic partner's status is equivalent to that of a spouse for purposes of the NIED claim, and 2) give domestic partners a statutory right to recover damages for NIED that only case law has given to spouses and clearly denied to unmarried cohabitants of opposite sexes. SHOULD UNMARRIED COHABITANTS ALSO GET THE SAME RIGHT? Technical amendments suggested: 1. On page 6, line 4, strike out the second "for" and insert "of" 2. The language of proposed Civil Code Section 1714.01 refers to "domestic partners" but does not specify whether the domestic partner is one qualified and registered as a domestic partner under California law. Without clarifying who the domestic partner is, the statute may be construed to apply to a domestic partner that is valid under the laws of another state, or one who qualifies under a local agency rule but not the state. A clear reference to the domestic partner intended to be covered is needed. 3. Wrongful death action Last year, AB 2211 (Kuehl) would have allowed a domestic partner to assert a cause of action for negligence, including NIED, and a cause of action for wrongful death of a person. AB 2211 died on the Assembly inactive file. This bill contains the same provision. The domestic partner would have the same standing, under this bill, as a decedent's surviving spouse, children, issue of AB 25 (Migden) Page 13 predeceased children, dependent putative spouse, dependent children of the putative spouse, dependent stepchildren, dependent parents, and a qualified dependent minor, to assert a wrongful death claim. The recent tragedy in San Francisco involving the killing of a woman by two vicious dogs pointed out the deficiency in the law as it applies to domestic partners. The woman's domestic partner has no right under existing law to assert a wrongful death claim against the owners of the vicious dogs that killed her partner. Under this bill that domestic partner would be able to assert a wrongful death action. However, it is not clear whether this bill would apply to causes of action accruing prior to its effective date (January 1, 2002). Generally, legislation enacted has no retroactive effect unless specified in the statute. Thus, Section 377.60 of the Code of Civil Procedure, the provision that would be amended by this bill, specifically states its applicability to causes of action on or after January 1, 1993 and that it was not intended to adversely affect the standing of any party having standing under prior law (see subdivisions (d) and (e) of Section 377.60, which was adopted in Chapter 178, Statutes of 1992.) Unless clarified, the effect of this bill on causes of action accruing in the year prior to its effective date may be in question. Thus, the domestic partner of the woman who was killed by the dogs may not be able to assert the wrongful death claim (since it happened this year), nor may any other causes of action for wrongful death accruing until January 1, 2002 be asserted by domestic partners. SHOULD THIS BE CLARIFIED? Technical amendment: Again, the reference to "domestic partner" in this proposed provision is not clear as to qualification and registration under this state's domestic partnership law. Thus, the enacted statute may be construed to confer the right to a domestic partner recognized as valid under laws of other states or only under a local agency rule. AB 25 (Migden) Page 14 SHOULD THIS BE CLARIFIED? 4. Domestic partner: same status as "surviving spouse" in intestate succession, probate and administration of decedent's estates a. Right to intestate succession This bill would confer on a domestic partner the same rights to separate property left by a decedent under the intestate succession laws, as is conferred on a "surviving spouse." Presumably, as in existing law, the domestic partner must survive the decedent by 120 hours. For purposes of the Probate Code a "surviving spouse" is, by exclusion of certain persons, one who was married to the decedent at the time of death or whose status as wife or husband of decedent was not terminated upon a judgment of legal separation or, even though the marriage was dissolved or annulled in another jurisdiction, the surviving spouse married decedent in this state or lived with decedent as husband and wife in this state. [Probate Code Section 78, describing who is not a surviving spouse.] A surviving spouse takes, by intestate succession, all of decedent's separate property if decedent has no surviving issue, parent, brother, sister or issue of a deceased brother or sister. He or she takes one-half of the intestate estate if decedent leaves one child or issue of one deceased child or where there is no issue but decedent leaves a parent or parents or their issue or the issue of either of them. He or she takes one-third of the intestate estate where the decedent leaves more than one child, or leaves one child and the issue of one or more deceased children, or leaves issue of more than two or more deceased children. This bill would include a definition in the Probate Code for the term "domestic partner" as "one of two persons who have filed a Declaration of Domestic Partnership with the Secretary of State?, provided AB 25 (Migden) Page 15 that the domestic partnership has not been terminated pursuant to Section 299 of the Family Code." However, under Section 299 of the Family Code, a domestic partnership automatically terminates when one partner dies or marries. If the domestic partnership is automatically terminated at death of one of the partners, then there is no surviving "domestic partner" who would be the equivalent of a "surviving spouse" for purposes of both intestate succession and administration of decedent's estate. SHOULD THIS BE CLARIFIED? b. Right to be appointed as administrator of decedent's estate The right to be appointed by the court to administer the estate of a decedent is a very important right, as it gives the person appointed control over the decedent's property of any nature, whether held individually or jointly with others. The law gives preference to the surviving spouse of a decedent because of the presumptions in the law as to the community property of an estate accumulated during marriage and the fiduciary nature of the relationship between husband and wife. This bill also would give a domestic partner the right to be appointed, and with the same top priority as a surviving spouse, to be the administrator of his or her deceased partner's estate. As in the above discussion pertaining to the automatic termination of a domestic partnership upon death of a partner, this provision must clearly provide that the domestic partnership is not terminated notwithstanding Section 299 of the Family Code, for the purpose of administration of a decedent's estate. The provision also may specify that the domestic partnership would not be terminated by death if the domestic partner is named as the executor of a will, trustee of a trust, or beneficiary of any other nonprobate transfer AB 25 (Migden) Page 16 document or other estate planning document. SHOULD THESE CLARIFICATIONS BE MADE? Additionally, this bill would place the predeceased domestic partner's children or other issue, parents, and issue of parents of a predeceased domestic partner in the same line of priority for appointment as those of a predeceased spouse. Especially in this regard, unless the automatic termination of domestic partnership is nullified somehow, these persons would lose their place in line and become "any other person" who would be last to be appointed under the statutory scheme of priority entitlement to appointment. c. Unintended effects: automatic revocation of will provisions Under existing law, the dissolution or annulment of a marriage after decedent executed a will automatically revokes any transfer made by the will to the former spouse, revokes any general or special power of appointment conferred on the former spouse by the will, revokes any provision of the will nominating the former spouse as executor, trustee, conservator, or guardian. [Probate Code Section 6122.] If the rights of a surviving spouse are to be granted to a domestic partner notwithstanding the automatic termination by death provisions of Family Code Section 299 (as suggested in comments a and b above), to be consistent, this bill also should automatically revoke any transfers made to and powers conferred on a former domestic partner under a will. This would avoid any inequities that might inadvertently be created by AB 25 elevating the status of a domestic partner to that of a surviving spouse for purposes of the specific provisions of the Probate Code. SHOULD THIS AUTOMATIC REVOCATION PROVISION BE AMENDED INTO THE BILL? In addition, AB 873 (Harman), which this Committee AB 25 (Migden) Page 17 passed last week, would equalize the treatment of nonprobate transfers of property or interest and those made under a will as far as the effects of dissolution or annulment of a marriage between decedent and a former spouse. If that bill is enacted, it should be double joined with this bill in order not to create disparity of treatment between will and nonprobate transfers between decedent and a former spouse or former domestic partners. d. Right to take under a statutory will: changes to the statutory will form Under existing law, any California resident may execute a statutory will, on a pre-constructed simple form available at stationery stores statewide. The form itself provides instructions, and boxes to check or fill out with names as required. Although AB 25 would make changes to the Statutory Will, the changes would not confer any rights to a domestic partner that current law does not now provide. Just as the testator can write in any name he or she wishes, the testator can write his or her domestic partner's name into the will as a (or the) beneficiary of his or her estate. The changes simply place the "domestic partner" (the phrase, not the name) inside any box where the "spouse" (the word, not the name) shows on the will form. Placing the domestic partner in the same box as the spouse does not legally elevate the stature of a domestic partner to that of a spouse. However, proponents claim this would make it easier for a domestic partner to will his or her estate to his or her partner. As in the comment made regarding the automatic revocation of transfers by will to a former spouse, it would be important to clarify in the Statutory Will instructions what the effect of a termination of domestic partnership under Section 299 of the Family Code would be on the validity and construction of the terms contained in an executed statutory will. AB 25 (Migden) Page 18 SHOULD THE STATUTORY WILL INSTRUCTIONS CONTAIN THESE STATEMENTS REGARDING EFFECTS OF TERMINATION OF A DOMESTIC PARTNERSHIP, AND WHAT CONDITIONS MAY CAUSE THE TERMINATION OF A DOMESTIC PARTNERSHIP? 5. Domestic partners in conservatorship proceedings In the areas of succession to decedent's property, administration of estates, and advance health care directives, it is easy for a domestic partner to ensure that his or her partner takes his or her property (by executing a will, naming the partner as executor, etc.) or is given proper authorization to act on his or her behalf (through a power of attorney, advance health care directive, appointment of surrogate). There are documents that may be executed to effectuate a partner's wishes. However, unless the partner executes these documents when he or she has capacity, incapacity would render his or her choices immaterial. The authority and rights of a spouse in the context of conservatorship proceedings is generally diminished only by the spouse's incapacity himself or herself. This is the reason why the spouse has first priority placement in the line of possible nominees or appointees of the court as conservator of his or her partner's person and/or estate, is entitled to notice of every proceeding and to participate in, any petition, and is entitled to various orders of the court relating to allowance for necessities of life, purchase of real property, and accountings. This bill would confer on a domestic partner the same rights and priority as currently exist with respect to the spouse of a conservatee or proposed conservatee. In this context, a conservator who is the spouse of a conservatee or proposed conservatee loses standing for appointment as conservator once a petition for dissolution or annulment is filed, and is required to notify the court if such a petition has been or will be filed with the court. Again, while it is easy to simply confer rights on AB 25 (Migden) Page 19 domestic partners in these conservatorship proceedings, the effect of termination of a domestic partnership should be clearly articulated also. SHOULD THIS BE CLARIFIED IN THE BILL? 6. Employee rights conferred on domestic partners Below is a laundry list of various other rights that this bill, AB 25, would confer on a domestic partner: a. The right to unemployment insurance benefits Existing law deems it good cause for an employee to leave his or her employment in order to join a spouse at a location from which it is impractical to commute to the employment and to which a transfer of employment is not available. This bill would make the same good cause condition applicable where a domestic partner leaves employment for the same reason. Therefore, a domestic partner would be able to collect unemployment benefits for as long as permitted by law or regulation. b. The right to disability benefit claims Existing law permits a person to file a claim for disability benefits on behalf of a spouse who is incapacitated, and to receive such payments. This bill would give that same authority to the domestic partner of a decedent. c. The right to health care coverage even after decedent's death AB 25 (Migden) Page 20 Under existing law, health care coverage may be available to domestic partners of public agency employees and annuitants. However, this health care coverage does not continue upon the death of the employee or annuitant. This bill would provide that a domestic partner and the child of a domestic partner shall be eligible for continued health care coverage if the employee or annuitant dies, if the domestic partner is receiving a beneficiary allowance. Further, the domestic partner would be prohibited from enrolling new or additional family members in the health benefits plan after the death of the employee an annuitant. d. The right to use sick leave to attend to domestic partner's illness or child of domestic partner Existing law allows an employee to use sick leave to attend to an illness of his or her child, spouse, or parent. Under the same provision of the Labor Code (Section 233), no employer may discriminate against an employee who uses his or her sick leave to attend to an ill spouse or child, or parent. Civil penalties attach for violations of this provision. This bill would give a domestic partner the same right (i.e., to use his or her sick leave to be with a sick family member). 7. Miscellaneous provisions a. The right to be treated as a spouse for income tax calculation Under the Revenue and Taxation Code, a spouse is treated as a dependent for purposes of calculating the personal state income tax liability of a person. This bill also would treat a domestic partner as a spouse, thus a dependent, for purpose of personal state income tax liability calculations. b. The right to petition for stepparent adoption of AB 25 (Migden) Page 21 domestic partner's child The adoption of a child by a stepparent is a simple, straightforward proceeding, and is usually expedited if the birth parent or parents, the child's parent who is married to the petitioner, and the child agree to the adoption (where pertinent). A stepparent adoption petition is investigated by the county and a report is submitted to the court hearing the petition. This bill would entitle a domestic partner to adopt a child in the same manner as a stepparent who is married to the child's parent. c. The right to make health care decisions Existing law confers on a person the right to appoint someone to make health care decisions on his or her behalf in the event of incapacity, by executing an advanced health care directive or by appointing a surrogate if he or she is confined in a health care facility. Existing law now allows a domestic partner to visit a sick partner in the hospital. This bill would confer the same right to a domestic partner in terms of making health care decisions. However, the Health Care Decisions Law recommends the use of advance health care directives and surrogate appointment under certain specified conditions. This would avoid any confusion, especially in emergency situations or in long-term health care facilities where the sick person is located. 8. Expanding the class of persons who may register as domestic partners According to the 2000 census, there are 683,516 unmarried couples in California. Extrapolating from the 1990 figures, 93 percent of these unmarried couples (635,670) are opposite-sex couples and 7 percent (47,846) are same-sex couples. Also extrapolating from the 1990 census, there are approximately 45,000 opposite-sex AB 25 (Migden) Page 22 unmarried couples who are senior citizen partners who are not married because of social security or other pension restrictions that would affect their incomes. Under existing law, opposite-sex couples may form domestic partnerships only if both partners are 62 years of age and eligible for old-age social security benefits. This bill would permit domestic partnerships to be formed and registered with the Secretary of State where the partners are of opposite sexes, if just one is 62 years old or older and is eligible for old-age social security benefits. The other partner may be under the age of 62. This provision would expand the universe of persons who may become domestic partners and benefit from the domestic partners' rights that this bill would confer on them. Last year, the author's AB 2421, which would have done exactly what this provision of AB 25 would do, was vetoed by the Governor. The veto message emphasized that the law allowing registration of domestic partnerships in California has just been enacted, and that AB 2421 would have expanded that legislation to an extent the Governor was not willing to do. However, if this bill passes, and in light of the fact that of the unmarried couples in the state there will be 590,670 who will remain as "unmarried cohabitants" without any rights despite stable, nurturing relationships, it would seem only fair to include this class of persons with those on whom this bill would confer rights similar to those of a spouse. Perhaps, it is the next frontier. 9. Support and opposition statements As stated previously, there is a large and diverse group of supporters of AB 25. AARP, for example, states that it supports particularly the clauses dealing with health decisions, conservatorships, sick leave, wills and tax issues as well as allowing opposite sex couples to register as domestic partners when only one of the partners is over AB 25 (Migden) Page 23 age 62. The ACLU argues that AB 25 "will strengthen families and give registered domestic partners crucial tools to take care of each other in times of crises and needs. AB 25 provides important protections that deserve to be enacted into law." On the other hand, opponents contend that AB 25 "would expand benefits to domestic partners in such a way as to further blur the lines between those associations and marriage?We particularly object to the 'right to adopt' being treated as a 'benefit' accruing to an individual or any couple. The state does not ascribe to the notion that a child is goods or property; therefore how can there be a 'right to adopt'? ?Adoption of a child can never be an entitlement." [California Catholic Conference letter, dated June 28, 2001.] Another opponent contends that "AB 25 is a catalogue of unneeded changes in law. The problems it ostensibly addresses do not exist. What does exist is the institution of family which, along with religion, forms the foundation of our national, moral, social, and political culture?AB 25 sets out to undermine the family by furthering the false notion that marriage is no more than one of any number of morally equal lifestyles?" [The California Public Policy Foundation letter, May 15, 2001.] Lastly, the Mountain Park Baptist Church writes that "[t]his bill would undermine traditional marriage and overturn the will of the voters. By awarding spousal rights to non-spouses, AB 25 would reject 61.4 percent of the voters in the state who want to protect marriage rights between a man and a woman?The benefits in the bill are unnecessary and can largely be accessed by private means." Support: American Association of Retired Persons; American Civil Liberties Union; Berkeley City Council; California School Employees Association; California Teachers Association; CalPERS; Church in Ocean Park; Coalition L.A.; Common Ground - The Westside HIV Community Center; Consumer Attorneys of California; East Bay Municipal Utility District; Ecumenical Catholic Church; First Congregational Church of AB 25 (Migden) Page 24 Alameda; National Association of Counsel for Children, L.A. Affiliate; Mt. Hollywood Congregational Church; National Organization for Women; People for the American Way; Planned Parenthood of California; Protection & Advocacy, Inc.; Soulforce, Inc.; South Bay Center; United Methodist Church, Santa Monica; Universal Fellowship of Metropolitan Community Churches; Ventura County Rainbow Alliance; letters from 32 individuals Opposition: California Catholic Conference; California Public Policy Foundation; Calvary Chapel of Santa Monica; Chino Hills - Chino American Family Association; Constitutional Republican Women; Committee on Moral Concerns; Dadasovich Insurance Services; Family Resource Council of Stanislaus County; First Baptist Church; Law Offices of Gary, Till & Burlingham; Latinos Por La Familia; Marriage Matters; Mountain Park Baptist; Osborne Neighborhood Church; Pro-Family Law Center; Ridge View Family Worship Center; Rio Linda Community United Methodist Church; Traditional Values Coalition; letters from 47 individuals HISTORY Source: California Alliance for Pride and Equality Related Pending Legislation: AB 1338 (Koretz) - would establish a "civil union" in California, modeled after the Vermont law, and give parties to a civil union the same rights and obligations as spouses in a marriage. AB 1338 is currently in the Assembly Judiciary Committee. Prior Legislation: See Background Prior Vote: Asm. Jud. (Ayes 8, Noes 2) Asm. On L.& E. (Ayes 5, Noes 2) Asm. Appr. (Ayes 14, Noes 7) Asm. Flr. (Ayes 42, Noes 31) AB 25 (Migden) Page 25 **************