BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2001-2002 Regular Session
AB 25 A
Assembly Member Migden B
As Amended May 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)
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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)
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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)
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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)
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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)
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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
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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)
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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
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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
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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
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