BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2216
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          Date of Hearing:   April 16, 2002

                           ASSEMBLY COMMITTEE ON JUDICIARY
                               Ellen M. Corbett, Chair
                 AB 2216 (Keeley) - As Introduced:  February 20, 2002

                              As Proposed to Be Amended
           
          SUBJECT  :   DOMESTIC PARTNERS:  INTESTATE SUCCESSION

           KEY ISSUE  :  SHOULD THE RIGHTS OF A DOMESTIC PARTNER BE EXPANDED  
          TO INCLUDE THE RIGHT TO INHERIT PROPERTY FROM A PARTNER IF ONE  
          PARTNER DIES WITHOUT A WILL?

                                      SYNOPSIS
          
          This bill provides a registered domestic partner with the right  
          to inherit property if one partner dies without a will and  
          contains a notification requirement by the Secretary of State to  
          inform registered domestic partners and domestic partner  
          applicants of this change.  The measure is similar to earlier  
          versions of AB 25 (Migden), Ch. 893, Stats. of 2001, and AB 2047  
          (Steinberg) as that measure was heard by this Committee.  The  
          language in question was deleted from AB 25, while AB 2047 was  
          held in the Assembly Appropriations Committee.  

          Supporters of the bill argue that it is needed to help protect a  
          surviving domestic partner who may suffer undue economic  
          hardships after the death of his or her partner.  Proponents  
          believe that providing the surviving partner with the right to  
          inherit a portion of his or her deceased partner's estate will  
          promote responsibility and help to ensure the continued  
          stability of the surviving partner's well being.  Opponents, on  
          the other hand, argue that the bill "is just another incremental  
          step in the effort to redefine the traditional family and  
          elevate an unmarried partner to equal status of a married  
          person."  Opponents also argue that the bill is unnecessary  
          since gay and lesbian couples can register as domestic partners  
          and, under existing law, create wills in any manner that they  
          choose. 

           SUMMARY  :  Establishes intestate succession rights of domestic  
          partners.  Specifically,  this bill  expands the legal rights of a  
          registered domestic partner to include the right to inherit  
          property if one partner dies without a will and contains a  








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          notification requirement by the Secretary of State to inform  
          registered domestic partners and domestic partner applicants of  
          this change. 

           EXISTING LAW  :  
           
          1)Provides, under the intestate succession law, that the  
            surviving spouse is entitled to a specified share of the  
            decedent's separate property that is not effectively disposed  
            of by will.  (Probate Code section 6401.)  

          2)Sets forth procedures for the establishment, registration and  
            termination of a domestic partnership and provides that the  
            only persons who may register as domestic partners are  
            same-sex couples over the age of 18, or opposite sex couples  
            where one of the partners is over the age of 62.  (Family Code  
            section 297  et   seq.  )

          3)Does not recognize the right of a registered domestic partner  
            to inherit property if one partner dies without a will.
           
           FISCAL EFFECT  :   The bill as currently in print is keyed  
          non-fiscal. 

           COMMENTS  :  In support of the measure, the author states:

               The majority of Californians, regardless of their  
               familial status, have not left testamentary  
               instructions, e.g., a will, trust or other estate  
               plan.  Without the right to inherit property from a  
               partner who dies intestate, surviving domestic  
               partners may experience undue economic hardship,  
               including, but not limited to, eviction from homes  
               they shared with the deceased.  Moreover, surviving  
               partners may face legal challenges to retain any of  
               the deceased partner's property, even if the couple  
               jointly purchased it.  Loss of funds built up by joint  
               efforts over years but titled in the name of one  
               partner can leave the survivor destitute and dependent  
               on charity and over-burdened public programs to  
               survive.

               Such situations are particularly unjust when the  
               surviving partner contributed important value to the  
               household by sacrificing career interests to put the  








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               other through school, raise children, or otherwise to  
               support the family unit.  Allowing a surviving  
               registered partner to inherit a portion of the  
               decedent's estate encourages responsibility and mutual  
               support between two committed adults, prevents undue  
               hardship to an economically dependent partner, and  
               discourages disputes between family members over the  
               disposition of assets.

               The events of September 11, in particular, have  
               highlighted the need for domestic partners to be  
               recognized in intestate succession laws.  Whether from  
               terrorist attack or other unfortunate circumstance,  
               death occurs without warning and without bias.  Since  
               domestic partners are not recognized in California's  
               intestate succession laws, the surviving domestic  
               partners of California's 9/11 victims have a far more  
               difficult task to establish their role as next-of-kin  
               to receive any relief from the Federal Victims  
               Compensation Fund.  AB 2216 would ensure that  
               surviving domestic partners have legal recognition in  
               the distribution of a deceased partner's estate.   

           Legislative history on the issue of inheritance rights for  
          domestic partners.   This bill expands the legal rights of a  
          registered domestic partner to include the right to inherit  
          property if one partner dies without a will.  A similar  
          provision was included in earlier versions of AB 25 (Migden) of  
          2001, Ch. 893, Stats. of 2001, but the provision was deleted as  
          a result of negotiations between interested parties.  When AB  
          2047 (Steinberg) of 2000 was heard by this Committee it also  
          contained a provision granting to domestic partners 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.  That bill was subsequently amended to be authored by  
          then-Assemblywoman Romero and also contain other provisions  
          relating to domestic partnership but was held in the Assembly  
          Appropriations Committee.

           Background on California's domestic partnership law.   In 1999,  
          the Legislature passed and Governor Davis signed into law AB 26  
          (Migden), 1999 Stats., Ch. 588, California's first domestic  
          partnership statute.  Thus, domestic partnerships have only been  
          recognized by this state since the year 2000, when the measure  
          took effect.  This statute, which forms the backbone of  








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          California's domestic partnership law, was substantially  
          broadened recently when Governor Davis signed AB 25 (Migden) of  
          2001. 

          California's domestic partnership statute 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.  As mentioned above, the only persons  
          who may register as domestic partners are same-sex couples over  
          the age of 18, or opposite sex couples where one of the partners  
          is over the age of 62, who are not blood relatives, not married  
          to others, not members of another domestic partnership, who  
          share a common residence, and agree to be jointly responsible  
          for each other's basic living expenses incurred during the  
          partnership.
           
          As the first step in 1999, AB 26 narrowly defined the legal  
          effect of creating a domestic partnership and expressly  
          contained a continuing legal constraint that registration in  
          California of a domestic partnership does not establish any  
          rights except those specifically provided in legislation, and at  
          any time that the partnership is terminated the partners shall  
          incur none of the obligations to each other established by law.   
          Thus, unlike with marriage where rights such as spousal support  
          may continue upon its termination, under California's domestic  
          partnership law no such legal rights and duties continue upon a  
          termination of the domestic partnership relationship. 

           Specific Rights Currently Granted Under California's Domestic  
          Partnership Law.   Under the scheme created by AB 26, registered  
          domestic partners were granted limited rights in the areas of  
          hospital visitation and health benefits if one of the partners  
          is a state employee.  This past October, the Governor signed AB  
          25, which conferred over a dozen new legal rights, privileges  
          and standing on all registered domestic partners, including,  
          among other things, 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 make health care decisions for an incapacitated partner; and  
          the right to be appointed as administrator of a decedent's  
          estate, in the same manner and priority as a spouse. 

           ARGUMENTS IN SUPPORT  :  The sponsor of the measure, the  








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          California Alliance for Pride and Equality (CAPE) states:

               This bill encourages domestic partners to act as a  
               family unit in financial matters and will protect each  
               of the partners if they make economic sacrifices for  
               the benefit of the domestic partnership.  This bill  
               will promote responsibility and mutual support between  
               two committed adults and will clarify some of the  
               ambiguities surrounding the rights of the surviving  
               partner.

          Approximately 90 individuals wrote in support of the bill,  
          stating that the bill is necessary because "[a]bsent this law,  
          the surviving domestic partner may suffer undue economic  
          hardships following the death of his or her partner.  Providing  
          the surviving partner the right to inherit a portion of his or  
          her deceased partner's estate will hopefully ensure the  
          continued stability of his or her economic well being." 

          California for Civil Marriage also supports the measure,  
          writing: 

               [The bill] is especially critical because many  
               same-sex couples are unaware that the right to inherit  
               was removed from AB 25 and are therefore unaware that  
               domestic partners cannot inherit without a will.  The  
               majority of Californians do not have wills. The law of  
               intestacy designates heirs for those Californians.   
               Generally, persons named as heirs under the intestacy  
               statutes are family members of the deceased: spouses,  
               parents, children.  Unfortunately, millions of  
               California families are not covered by the intestacy  
               statutes because they are unable to marry the life  
               partners of their choice.

          The Human Rights/Fair Housing Commission of the City and County  
          of Sacramento supports the measure, writing that the bill  
          furthers the Commission's stated mission to "promote harmony and  
          protect the citizens of Sacramento County from acts of hate  
          crime violence, employment discrimination and public  
          accommodations discrimination."

          In support of the measure, the Gay and Lesbian Community  
          Services Center of Orange County states: 









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               All too often, domestic partners experience the  
               tragedy of a sudden death before they can complete  
               estate planning to secure the assets for the surviving  
               partner.  Unlike other family members, however,  
               domestic partners cannot legally inherit property from  
               a deceased partner who dies intestate.  Without this  
               right, the surviving partner may experience undue  
               financial hardship and face legal challenges from  
               other family members.  This bill will ensure that  
               surviving domestic partners have legal recognition in  
               the distribution of a deceased partner's estate.   
               Providing domestic partners with the right to inherit  
               a portion of their deceased partners' estates is the  
               fair and right thing to do.

           ARGUMENTS IN OPPOSITION  :  The Committee on Moral Concerns  
          opposes the measure, stating:

               Domestic partnerships should never approach equal  
               relations with marriages.  For heterosexuals, if they  
               want to get married, they may do so.  If they opt  
               instead for domestic partner registration, they may do  
               that.  Domestic partnerships are vastly different from  
               marriages, and they should remain so.

               Gay and lesbian couples may register as domestic  
               partners and create their own wills in any manner they  
               choose.  There is no need for this bill.

               Never before has a society or major religion legally  
               accepted gay and lesbian couples.  Moving toward  
               equalizing domestic partnerships with marriage will  
               lower our standard of morality below that of any  
               culture, nation, state, tribe, clan, or settlement in  
               human history.  This bill sends a terrible message to  
               California's young people, and the rest of the world.

               California voters decided against gay and lesbian  
               marriages with the passage of Proposition 22.   
               Equalizing domestic partnerships with marriages  
               violates the will of the people.

          In opposition to the bill, the Capitol Resource Institute  
          writes:









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               AB 2216 is just another incremental step in the effort  
               to redefine the traditional family and elevate an  
               unmarried partner to equal status of a married person.

               It is interesting, however, that this bill does not  
               best serve the people it is intended to help.  Wills  
               are a far better alternative for leaving an estate and  
               this option should be encouraged rather than  
               discouraged.  Even married couples are strongly urged  
               to use wills.  In the case of domestic partners who  
               are aware that they do not have intestate provisions  
               in law, they are more likely to draft wills in order  
               to leave their estates to their partners if they  
               desire to do so.

               There is no reason for AB 2216 other than to further a  
               narrow agenda by those who are intent on ignoring the  
               will of California's voters with regards to  
               Proposition 22.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Alliance for Pride and Equality (Sponsor)
          AIDS Healthcare Foundation
          American Civil Liberties Union
          Bay Area Lawyers for Individual Freedom
          California Coalition for Youth
          California HIV Advocacy Coalition
          California Labor Federation, AFL-CIO
          Californians for Civil Marriage
          Congress of California Seniors
          Gay and Lesbian Community Services Center of Orange County
          Gray Panthers
          Human Rights Campaign
          Human Rights/Fair Housing Commission of the City and County of  
          Sacramento
          Lambda Legal Defense and Education Fund
          Older Women's League
          Pacific Pride Foundation
          People for the American Way
          The Diversity Center of Santa Cruz
          The Lambda Letters Project
          Approximately 90 individuals








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           Opposition 
           
          Campaign for California Families
          Capitol Resource Institute
          Committee on Moral Concerns 
           
          Analysis Prepared by :    Saskia Kim / JUD. / (916) 319-2334