BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 25|
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THIRD READING
Bill No: AB 25
Author: Migden (D), et al
Amended: 9/7/01 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-2, 7/10/01
AYES: Escutia, Kuehl, O'Connell, Peace
NOES: Ackerman, Haynes
SENATE APPROPRIATIONS COMMITTEE : 8-3, 9/6/01
AYES: Alpert, Bowen, Burton, Escutia, Karnette, Murray,
Perata, Speier
NOES: Battin, Johannessen, Poochigian
ASSEMBLY FLOOR : 42-31, 6/6/01 - See last page for vote
SUBJECT : Domestic partnerships: new rights
SOURCE : California Alliance for Pride and Equality
DIGEST : This bill expands 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
provides domestic partners consistent with the rights,
privileges and standing of spouses. These provisions are:
CONTINUED
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1.The right to recover damages for negligent infliction of
emotional distress.
2. The right to assert a cause of action for wrongful
death.
3. The right of a domestic partner to adopt a child of
his or her partner as a stepparent.
4. 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.
5. The right to make health care decisions for an
incapacitated partner.
6. The right to nominate a conservator, be nominated as
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.
7. 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.
8. 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.
9. 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.
10. The right to be treated the same as a spouse in a
statutory will.
11. The right to inherit property from a deceased partner
in the same manner as a spouse inheriting under the
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intestate succession laws of the State.
12. The right to be appointed as administrator of
decedent's estate, in the same manner and priority as a
spouse.
13. 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.
14. The right to be treated as the spouse of a taxpayer
for purposes of determining personal state income tax
liability.
15. 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.
16. 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.
17. 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.
18. Allow death benefits and survivor allowances to be
given to a surviving domestic partner in San Mateo
County.
ANALYSIS : Existing law defines "domestic partners" as
"two adults who have chosen to share one another's lives in
an 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,
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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 allows 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.
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 1264.] (See Comment 2.)
This bill gives a domestic partner the same right as a
spouse to recover damages for negligent infliction of
emotional distress.
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 gives the same right to bring a cause of action
in wrongful death to the domestic partner of the decedent.
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.
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This bill provides 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 confers 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.
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 includes a domestic partner in the same category
as a spouse in such statutory will form. The bill provides
that the termination of a domestic partnership revokes a
bequest of property made in a will to a former domestic
partner.
Existing law governing conservatorships provides the spouse
of a conservatee or proposed conservatee certain 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 confers 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
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incapacitated.
This bill confers on a domestic partner "the same authority
as a spouse" to make a health care decision on behalf of an
incapacitated partner.
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 requires 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 allows 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 State, another
state, or a local agency of another state under which the
partnership was created.
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 requires the employer to permit the employee to
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use such sick leave to attend to the illness of a domestic
partner.
Existing law treats a spouse as a dependent for purposes of
calculating personal income tax liability under the Revenue
and Taxation Code.
This bill treats a domestic partner the same as a spouse
for purposes of determining state personal income tax
liability.
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 extends the same entitlement to a domestic
partner who leaves an employment under the same conditions.
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 gives the same right to file disability benefit
claims to the domestic partner of a person entitled
thereto.
Under the existing County Employees Retirement Law of 1937,
death benefits and survivor's allowances are payable to the
surviving spouse or children of a deceased member, as
specified.
This bill provides that in San Mateo County, subject to the
approval of the board of supervisors, death benefits and
survivor's allowances may be payable to a member's
surviving domestic partner, as specified.
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This bill makes conforming changes consistent with the
substance of the above provisions.
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
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Appropriations Committee.
AB 1990 (Romero) , which would have given domestic partners
the same right as spouses to make medical 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 vetoed.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
Fiscal Impact (in thousands)
Major Provisions 2001-02 2002-03 2003-04 Fund
SOS registration -Unknown increase offset by
fees-General
Tax revenue loss $1,000 $1,000 $1000 General
Unemployment benefits 100 100
100UI
Health benefits for
Surviving partner -Unknown potentially
significant- Various
Health benefits for
Increased enrollees -Unknown, potentially
significant- Various
SUPPORT : (Verified as of 5/31/01: 9/8/01-unable to
reverify)
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
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Consumer Attorneys of California
East Bay Municipal Utility District
Ecumenical Catholic Church
First Congregational Church of 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
OPPOSITION : (Verified as of 5/31/01: 9/8/01-unable to
reverify )
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
ARGUMENTS IN SUPPORT : 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
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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 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."
ARGUMENTS IN OPPOSITION : 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."
ASSEMBLY FLOOR
AYES: Alquist, Aroner, Calderon, Canciamilla, Cardenas,
Cedillo, Chan, Chavez, Chu, Cohn, Corbett, Diaz, Dutra,
Firebaugh, Frommer, Goldberg, Jackson, Keeley, Kehoe,
Koretz, Liu, Longville, Lowenthal, Migden, Nakano,
Nation, Negrete McLeod, Oropeza, Papan, Pavley, Salinas,
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Shelley, Simitian, Steinberg, Strom-Martin, Thomson,
Vargas, Wayne, Wesson, Wiggins, Wright, Hertzberg
NOES: Aanestad, Ashburn, Bates, Bogh, Briggs, Bill
Campbell, John Campbell, Cogdill, Cox, Daucher,
Dickerson, Florez, Harman, Havice, Hollingsworth, Kelley,
La Suer, Leach, Leonard, Leslie, Maddox, Maldonado,
Matthews, Mountjoy, Robert Pacheco, Rod Pacheco,
Pescetti, Runner, Strickland, Wyland, Wyman
RJG:kb 9/8/01 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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