BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2001-2002 Regular Session
AB 2216 A
Assembly Member Keeley B
As Amended April 25, 2002
Hearing Date: June 25, 2002 2
Probate Code 2
GMO:cjt 1
6
SUBJECT
Intestate Succession: Domestic Partners
DESCRIPTION
This bill would allow a surviving domestic partner to
inherit his or her deceased partner's separate property
that passes intestate in the same manner as the surviving
spouse of an intestate decedent. This provision would
become effective on July 1, 2003.
The bill would require the Secretary of State to mail, on
or before March 1, 2003, a specified notice to registered
domestic partners about the change in the intestate
succession law that this bill would make, and, commencing
on January 1, 2003, to provide the same specified notice to
potential domestic partnership registrants.
BACKGROUND
Under the state's intestate succession laws, any property
of a decedent that was not disposed of by will passes to
the decedent's heirs as prescribed by statute [Probate
Section Code 6400.]
It is well established in case law that "succession to
estates is purely a matter of statutory regulation, which
cannot be changed by the courts," Estate of Griswold (2001)
25 Cal.4th 904, and that the heirs of a person are those
whom the law appoints to succeed at his or her death to his
(more)
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or her estate in case of intestacy [Witkin, Summary of
California Law, 9th Ed. Section 127, citing Dickey v.
Walrond (1927) 200 C. 335 and Estate of Jones (1934) 3
C.A.2d 395.] The courts have also distinguished clearly
between "heirs" who are appointed by the law, and "next of
kin," or "kin," who are related to the decedent by blood.
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. The Secretary of State
reports that there currently are 13,000 domestic
partnerships registered in the state.
AB 25 (Migden, Chapter 893, Statutes of 2001) expanded
California law on domestic partnerships and conferred on
registered domestic partners various rights, privileges and
standing conferred by the state on married couples. Among
those rights and privileges are the right to assert a cause
of action for wrongful death, the right to receive
continued health care coverage as a surviving beneficiary
of the decedent, the right to make health care decisions
for an incapacitated partner, the right to adopt a child of
his or her partner as a stepparent, 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, and the
right to be nominated and appointed as conservator of an
incapacitated partner. AB 25 contained the same intestate
succession provision that AB 2216 now contains. However,
the intestate succession provision was deleted at the
Governor's request before he signed AB 25 into law.
AB 2216 would establish a domestic partner's statutory
right to inherit from the separate property estate of a
deceased partner as his or her heir under the intestate
succession laws, in the same manner as a surviving spouse
inherits separate property of a spouse who died without a
will.
CHANGES TO EXISTING LAW
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1. 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 where at
least one of the domestic partners is over the age of 62
and is eligible 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 require the Secretary of State, on or
before March 1, 2003, to mail a specified notice to
registered domestic partners regarding the intestate
succession laws of the state and the changes to that law
that this bill would make, and beginning on January 1,
2003, to provide the same notice to potential domestic
partnership registrants and to post the notice on the
Secretary of State's website from where a Domestic
Partnership Registration Form may be downloaded.
2. Existing law provides that the separate property of a
decedent who dies intestate is to be distributed to a
surviving spouse as follows: (1) the entire estate if
there is no surviving issue, parent, brother, sister, or
child of a predeceased brother or sister; (2) one-half of
the estate if there is one surviving child or issue of
one deceased child or if there is no issue but there is a
surviving parent or parents or their surviving issue or
the issue of either of them; (3) one-third of the estate
if the decedent leaves more than one child, or leaves one
child and the issue of one or more deceased children, or
leaves issue of two or more deceased children. [Probate
Code Section 6401.]
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This bill would allow a surviving registered domestic
partner to inherit his or her partner's separate property
that passes intestate in the same manner as the surviving
spouse of an intestate decedent. The bill would make a
conforming change in another Probate Code Section
governing intestate succession if the intestate decedent
leaves no surviving spouse.
This provision of the bill would become effective on July
1, 2003.
COMMENT
1. Stated need for the bill
Proponents of this bill provide many anecdotes and cases
in litigation relating to rights of domestic partners to
inherit or manage the estate of their deceased partners.
A particularly tragic one involves the surviving domestic
partner of one of the flight attendants on American
Airlines Flight 11 that crashed into the World Trade
Center in New York on September 11. Because Mr. Collman,
the deceased partner, left no will, his entire estate
will go to his parents, who are his legal heirs, despite
the fact that the domestic partners had lived together
for 11 years and had registered with the state once the
Domestic Partnership Act was enacted. Further, American
Airlines refused to recognize the surviving domestic
partner, Mr. Bradkowski, for purposes of employee death
benefits provided to heirs, even though he was named as
beneficiary for other purposes. Finally, regulations
governing the federal September 11th victim compensation
fund recognize as a qualified representative or
beneficiary of a victim only those entitled to
inheritance under state laws. Governor Davis' Executive
Order D-54-02, issued to recognize domestic partners for
purposes of assistance and compensation as victims of
violent crime and to urge the Special Master to consider
various provisions of state law that confer rights to
domestic partners, has not been given force and effect
for purposes of the federal September 11th compensation
fund, according to proponents.
Other cases mentioned involve disputes between a
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surviving domestic partner and the next of kin or family
of the deceased who died intestate, sometimes over a home
that the partners had shared for a long period or over
the surviving partner's rights to property jointly
purchased by the domestic partners, or over the
disposition of personal effects of the deceased partner.
Proponents point to studies that show less than 43% of
Californians prepare a will [Mary Louise Fellow, et al.,
Public Attitudes About Property Distribution at Death and
Intestate Succession Law in the United States, 1978
American Bar Foundation Research Journal 319, 327] and
that nationally, the general public supports inheritance
rights for lesbian and gay partners [Kaiser Family
Foundation study, Inside-OUT: A Report on the Experiences
of Lesbians, Gays, and Bisexuals in America and the
Public's Views on Issues and Policies Related to Sexual
Orientation, released November 2001]. Thus, they say,
since domestic partners are no different than the
majority of Californians who do not anticipate the
complications that arise when one dies without a will or
other estate planning instrument in place, and since a
majority of the public supports inheritance rights for
them, this change to the intestate succession laws of the
state is justified.
Lastly, proponents argue that allowing registered
domestic partners to inherit from the separate intestate
estate of their deceased partners would not only be fair
but also avoid potential litigation between the surviving
domestic partner and the next of kin of the deceased.
2. Domestic partners and surviving spouses: right to
intestate succession
Last year's AB 25 was a major attempt to confer on
registered domestic partners the same rights that spouses
have with regards to non-community property, access to
various entitlements, and standing in probate court
proceedings to be appointed conservator of a partner or
administrator of a partner's estate. The right to
inherit from the separate property of a partner who died
intestate in the same manner as a surviving spouse
inherits separate property from a spouse who died
intestate was stricken from AB 25 prior to its being
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signed into law.
This bill would confer on a domestic partner the same
rights to inherit separate property left by his or her
partner under the intestate succession laws, as is
conferred on the "surviving spouse" of a person who died
without a will. To inherit under the intestate
succession laws in the same manner as a "surviving
spouse," the domestic partner, presumably, must survive
the decedent by at least 120 hours as is required of a
surviving spouse.
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. [Probate Code Section 6401.]
This bill would place a domestic partner on equal terms
as a "surviving spouse." Probate Code Section 78 defines
who is a "surviving spouse." This bill refers to a
"domestic partner, as defined in Section 297 of the
Family Code," which does not, by itself, define who is a
"surviving domestic partner." The definition of this
term is found in Probate Code Section 37, which is
patterned after the Probate Code definition of "surviving
spouse."
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Probate Code Section 37(a) refers to Family Code Section
297 for a definition of a "domestic partner" and Section
37(b) states that "[n]otwithstanding Section 299 of the
Family Code, if a domestic partnership is terminated by
the death of one of the parties and Notice of Termination
was not filed by either party prior to the date of death
of the decedent, the domestic partner who survives the
deceased is a surviving domestic partner, and shall be
entitled to the rights of a surviving domestic partner as
provided in this code."
SHOULD THE DEFINITION OF A SURVIVING DOMESTIC PARTNER
REFERENCE PROBATE CODE SECTION 37(b)?
The bill contains a delayed effective date of July 1,
2003. While this bill may not be able to help surviving
domestic partners where the separate property estate of
the intestate decedent has already been distributed, it
would affect those rights that would vest as of July 1,
2003.
3. Notice to be given by Secretary of State
AB 2216 would require the Secretary of State to mail to
each domestic partner registered as of January 1, 2003 a
notice about existing intestate succession laws as they
apply to domestic partners and the change that this bill
would make to that law. The actual language of the
notice is specified in the bill. According to the
Secretary of State, there are presently 13,000 domestic
partnerships registered, thus 26,000 letters will be sent
by March 1, 2003 as required by the bill.
Further, the bill would require the same notice to be
given to all who request the form for declaring and
registering a domestic partnership, and to be attached to
the Declaration of Domestic Partnership form posted on
the Secretary of State's website for the public to
access. This required notice would be provided as of
January 1, 2003.
The death of a registered domestic partner automatically
terminates the partnership, and requires the surviving
domestic partner to file a Notice of Termination with the
Secretary of State, indicating the date of death as the
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date the partnership was terminated. [Family Code Section
299.] The notice that the Secretary of State would be
required to mail to all registered domestic partners and
to attach to the Declaration of Domestic Partnership
contains erroneous information regarding the effect of
death on a registered domestic partnership and the
requirement that a Notice of Termination be filed. This
should be corrected.
Suggested amendment: rewrite lines 28 to 31 on page 4,
and lines 1 to 4 on page 6 to correctly reflect current
law which provides that (1) death of one partner
automatically terminates the domestic partnership and
that the surviving partner must notify the Secretary of
State by filing a Notice of Termination of Domestic
Partnership; (2) if either partner sent to the other by
certified mail a notice terminating the domestic
partnership before the death of decedent, the partnership
was automatically terminated whether or not a Notice of
Termination of Domestic Partnership was filed with the
Secretary of State, but the Secretary of State's receipt
of the Notice of Termination establishes the actual date
of termination of the partnership; and (3) if either
partner, prior to the death of decedent, filed a Notice
of Termination of Domestic Partnership with the Secretary
of State based on other grounds, i.e., one of them
marries or they no longer have a common residence, the
domestic partnership was automatically terminated (and
the "surviving" domestic partner cannot claim intestate
succession rights under AB 2216).
Scenario 2 would then require the notice to warn former
domestic partners that if they had not filed a Notice of
Termination of Domestic Partnership
they should do so in order to formalize the termination
of domestic partnership and ensure that the former
domestic partner could not inherit the separate property
of intestate decedent.
4. Conflict between AB 2862 and AB 2216
When the provision conferring intestacy succession rights
to domestic partners was deleted from AB 25 (Migden,
Chapter 893, Statutes 2001) prior to enrollment, other
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Page 9
conforming changes were not made. AB 2862 (Migden, 2002)
would make those corrections.
However, AB 2216 would enact the intestate succession
provision on which AB 2862 bases its clean-up provisions.
AB 2862 is also scheduled to be heard by the Committee
today.
Should both bills pass, the clean-up provisions in AB
2862 relating to intestate succession rights of domestic
partners should probably be chaptered out of the bill,
unless AB 2216 is vetoed by the Governor. Both bills
should contain some reconciling language that would
either chapter out AB 2862 language if AB 2216 is
enacted, or that would keep AB 2862 intact if AB 2216 is
not chaptered.
5. Other technical amendments
a. On page 4, line 14, after "a" insert:surviving
b. On page 4, line 35, strike out the first and the
second "estate-planning" and insert:estate planning
c. On page 5, line 27, after "a" insert:surviving
d. On page 6, line 35, strike out the first and the
second "estate-planning" and insert:estate planning
6. Opposition arguments
The Campaign for California Families opposes AB 2216
because "the rights of marriage are only for a man and a
woman committed in marriage. That was the sentiment of
the people of the State of California when they voted
overwhelmingly to pass Proposition 22, the Protection of
Marriage Initiative?The state should strengthen, not
weaken, the sacred institution of marriage. This bill is
a poor substitute for purportedly responsible "domestic
partners" who could have and should have utilized private
and inexpensive means to establish wills that are
rock-solid. Even beyond undermining the value of
marriage and the sentiment of the people, AB 2216 is
unnecessary in the era of responsible adults?A trip to
Staples or Office Depot is all that is needed to acquire
inexpensive legal forms for wills, making intestate
succession unnecessary."
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"This bill would equalize domestic partnerships with
marriages in intestate succession?California voters
decided against gay and lesbian marriages with the
passage of Proposition 22. Equalizing domestic
partnerships with marriage violates the will of the
people." Committee on Moral Concerns letter, dated April
11, 2002.
Domestic partnerships are available to opposite-sex
partners, when one of the partners is over the age of 62
and is eligible for social security benefits.
Support: American Civil Liberties Union (ACLU); California
Alliance for Pride and Equality (CAPE); California
Chapter of the National Association of Social
Workers (NASW-CA); California HIV Advocacy
Coalition, Southern California Region; California
Coalition for Youth; California National
Organization for Women; California School Employees
Association; Congress of California Seniors;
Domestic Partners Inheritance Rights; Human
Rights/Fair Housing Commission of the City and
County of Sacramento; Gray Panthers; Lambda Legal;
Lambda Letters Project; San Francisco Aids
Foundation; National Center for Lesbian Rights
(NCLR); California Judges Association; approx. 200
individuals
Opposition: Committee on Moral Concerns; Capitol Resource
Institute; Campaign for California Families
HISTORY
Source: California Alliance for Pride and Equity (Sponsor)
Related Pending Legislation: AB 2862 (Migden) will also be
heard in Committee today. It is a
clean-up bill to AB 25 of last year.
AB 1080 (Kehoe) will be heard in
Committee on July 2. The bill would
require businesses that contract for
goods and services with the state to
provide the same benefits to domestic
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partners of employees that they
provide to families of employees.
Prior Legislation: AB 25 (Migden, Chapter 893, Statutes
of 2001) See Background.
AB 2047 (Romero, 2000) would have conferred
intestate succession rights to a domestic
partner as well as priority for appointment
as administrator of decedent's estate. The
bill died in the Assembly Appropriations
Committee.
Prior Vote: Asm. Jud. (Ayes 8, Noes 3); Asm. Appr. (Ayes
14, Noes 7);
Asm. Flr (Ayes 39, Noes 25); Asm. Flr. (41, Noes
29)
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