BILL NUMBER: AB 2862 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 1, 2002
INTRODUCED BY Assembly Member Migden
FEBRUARY 25, 2002
An act to amend Section 377.60 of the Code of Civil Procedure,
to amend Section 1374.58 of the Health and Safety Code, to amend
Section 10121.7 of the Insurance Code, to amend Sections 6240 and
8462 of the Probate Code, relating to wrongful death
domestic partnership .
LEGISLATIVE COUNSEL'S DIGEST
AB 2862, as amended, Migden. Wrongful death: actions
Domestic partnership .
(1) Existing law provides that a cause of action for the
death of a person caused by the wrongful act or neglect of another
may be brought by specified parties, including the decedent's
surviving spouse, domestic partner, children, and the issue of
deceased children.
This bill would make technical and clarifying changes to these
provisions.
(2) Existing law requires a group health care service plan and a
policy of disability insurance that provides hospital, medical, or
surgical expense benefits to offer coverage to employers or
guaranteed associations for the domestic partner of an employee,
subscriber, insured, or policyholder to the same extent, and subject
to the same terms and conditions, as provided to a dependent of the
employee, subscriber, insured, or policyholder.
This bill would make clarifying changes in these provisions.
(3) Existing law provides for the transfer of the property of a
deceased person by will, and prescribes a statutory will form.
This bill would make technical changes in these provisions. This
bill would add a specified statement regarding interstate concession
by domestic partners.
(4) Existing law provides that the domestic partner of a decedent
is entitled to be appointed administrator of the decedent's estate
and gives the domestic partner priority over other persons in
relation to the decedent. Existing law conditions the right of the
domestic partner to be appointed administrator of the decedent's
estate on specified factors, including the right of the domestic
partner to succeed to all or part of the estate.
This bill would remove the above-described conditions on the right
of the domestic partner to serve as administrator of the decedent's
estate.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 377.60 of the Code of Civil Procedure is
amended to read:
377.60. (a) A cause of action for the death of a person caused by
the wrongful act or neglect of another may be asserted by any of the
following persons or by the decedent's personal representative on
their behalf:
(1) The decedent's surviving spouse.
(2) The decedent's domestic partner.
(3) The decedent's children and the issue of deceased children.
(4) If there are no surviving children or issue of the decedent
under paragraph (3), the persons who would be entitled to the
property of the decedent by intestate succession.
(5) The putative spouse, children of the putative spouse,
stepchildren, or parents, if they were dependent on the decedent. As
used in this subdivision, "putative spouse" means the surviving
spouse of a void or voidable marriage who is found by the court to
have believed in good faith that the marriage to the decedent was
valid.
(6) A minor if, at the time of the decedent's death, the minor
resided for the previous 180 days in the decedent's household and was
dependent on the decedent for one-half or more of the minor's
support.
(b) This section applies to any cause of action arising on or
after January 1, 1993.
(c) The addition of this section by Chapter 178 of the Statutes of
1992 was not intended to adversely affect the standing of any party
having standing under prior law, and the standing of parties governed
by that version of this section as added by Chapter 178 of the
Statutes of 1992 shall be the same as specified herein as amended by
Chapter 563 of the Statutes of 1996.
(d) For the purpose of this section, "domestic partner" has the
meaning provided in Section 297 of the Family Code.
SEC. 2. Section 1374.58 of the Health and Safety Code is amended
to read:
1374.58. (a) A group health care service plan that provides
hospital, medical, or surgical expense benefits shall offer coverage
to employers or guaranteed associations, as
defined in Section 1357, or to employers, for the domestic
partner of an employee or subscriber to the same extent, and subject
to the same terms and conditions, as provided to a dependent of the
employee or subscriber, and shall inform employers and guaranteed
associations of the availability of this coverage.
(b) If an employer or guaranteed association has purchased
coverage for domestic partners pursuant to subdivision (a), a health
care service plan that provides hospital, medical, or surgical
expense benefits for employees or subscribers and their dependents
shall enroll as a dependent, upon application by the employer or
group administrator, a domestic partner of an employee or subscriber
in accordance with the terms and conditions of the group contract
that apply generally to all dependents under the plan, including
coordination of benefits.
(c) For purposes of this section, the term "domestic partner"
shall have the same meaning as that term is used in Section 297 of
the Family Code.
(d) A health care service plan may require that the employee or
subscriber verify the status of the domestic partnership by providing
to the plan a copy of a valid Declaration of Domestic Partnership
filed with the Secretary of State pursuant to Section 298 of the
Family Code 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 is created. The plan may also require that the
employee or subscriber notify the plan upon the termination of the
domestic partnership.
(e) Nothing in this section shall be construed to expand the
requirements of Section 4980B of Title 26 of the United States Code,
Section 1161, and following, of Title 29 of the United States Code,
or Section 300bb-1, and following, of Title 42 of the United States
Code, as added by the Consolidated Omnibus Budget Reconciliation Act
of 1985 (Public Law 99-272), and as those provisions may be later
amended.
SEC. 3. Section 10121.7 of the Insurance Code is amended to read:
10121.7. (a) A policy of group disability insurance that provides
hospital, medical, or surgical expense benefits shall offer coverage
to employers or guaranteed associations, as
defined in Section 10700, or to employers, for the
domestic partner of an employee, insured, or policyholder to the same
extent, and subject to the same terms and conditions, as provided to
a dependent of the employee, insured, or policyholder, and shall
inform employers and guaranteed associations of the availability of
this coverage.
(b) If an employer or guaranteed association has purchased
coverage for domestic partners pursuant to subdivision (a), a
disability insurer that provides hospital, medical, or surgical
expense benefits for employees, insureds, or policyholders and their
dependents shall enroll as a dependent, upon application by the
employer or group administrator, a domestic partner of the employee,
insured, or policyholder in accordance with the terms and conditions
of the group contract that apply generally to all dependents under
the policy, including coordination of benefits.
(c) For purposes of this section, the term "domestic partner"
shall have the same meaning as that term is used in Section 297 of
the Family Code.
(d) A policy of group disability insurance may require that the
employee, insured, or policyholder verify the status of the domestic
partnership by providing to the insurer a copy of a valid Declaration
of Domestic Partnership filed with the Secretary of State pursuant
to Section 298 of the Family Code 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 is created. The policy may
also require that the employee, insured, or policyholder notify the
insurer upon the termination of the domestic partnership.
(e) Nothing in this section shall be construed to expand the
requirements of Section 4980B of Title 26 of the United States Code,
Section 1161, and following, of Title 29 of the United States Code,
or Section 300bb-1, and following, of Title 42 of the United States
Code, as added by the Consolidated Omnibus Budget Reconciliation Act
of 1985 (Public Law 99-272), and as those provisions may be later
amended.
SEC. 4. Section 6240 of the Probate Code is amended to read:
6240. The following is the California Statutory Will form:
QUESTIONS AND ANSWERS ABOUT THIS CALIFORNIA STATUTORY WILL
The following information, in question and answer form, is not a
part of the California Statutory Will. It is designed to help you
understand about Wills and to decide if this Will meets your needs.
This Will is in a simple form. The complete text of each paragraph
of this Will is printed at the end of the Will.
1. What happens if I die without a Will? If you die without a
Will, what you own (your "assets") in your name alone will be divided
among your spouse, domestic partner, children, or
other relatives according to state law. The court will appoint a
relative to collect and distribute your assets. A domestic
partner will not have a right to inherit your property without a
will.
2. What can a Will do for me? In a Will you may designate who
will receive your assets at your death. You may designate someone
(called an "executor") to appear before the court, collect your
assets, pay your debts and taxes, and distribute your assets as you
specify. You may nominate someone (called a "guardian") to raise
your children who are under age 18. You may designate someone
(called a "custodian") to manage assets for your children until they
reach any age between 18 and 25.
3. Does a Will avoid probate? No. With or without a Will, assets
in your name alone usually go through the court probate process.
The court's first job is to determine if your Will is valid.
4. What is community property? Can I give away my share in my
Will? If you are married and you or your spouse earned money during
your marriage from work and wages, that money (and the assets bought
with it) is community property. Your Will can only give away your
one-half of community property. Your Will cannot give away your
spouse's one-half of community property.
5. Does my Will give away all of my assets? Do all assets go
through probate? No. Money in a joint tenancy bank account
automatically belongs to the other named owner without probate. If
your spouse, domestic partner, or child is on the deed to your house
as a joint tenant, the house automatically passes to him or her.
Life insurance and retirement plan benefits may pass directly to the
named beneficiary. A Will does not necessarily control how these
types of "nonprobate" assets pass at your death.
6. Are there different kinds of Wills? Yes. There are
handwritten Wills, typewritten Wills, attorney-prepared Wills, and
statutory Wills. All are valid if done precisely as the law
requires. You should see a lawyer if you do not want to use this
statutory Will or if you do not understand this form.
7. Who may use this Will? This Will is based on California law.
It is designed only for California residents. You may use this form
if you are single, married, a member of a domestic partnership, or
divorced. You must be age 18 or older and of sound mind.
8. Are there any reasons why I should NOT use this statutory Will?
Yes. This is a simple Will. It is not designed to reduce death
taxes or other taxes. Talk to a lawyer to do tax planning,
especially if (i) your assets will be worth more than $600,000 or the
current amount excluded from estate tax under federal law at your
death, (ii) you own business-related assets, (iii) you want to create
a trust fund for your children's education or other purposes, (iv)
you own assets in some other state, (v) you want to disinherit your
spouse, domestic partner, or descendants, or (vi) you have valuable
interests in pension or profit-sharing plans. You should talk to a
lawyer who knows about estate planning if this Will does not meet
your needs. This Will treats most adopted children like natural
children. You should talk to a lawyer if you have stepchildren or
foster children whom you have not adopted.
9. May I add or cross out any words on this Will? No. If you do,
the Will may be invalid or the court may ignore the crossed out or
added words. You may only fill in the blanks. You may amend this
Will by a separate document (called a codicil). Talk to a lawyer if
you want to do something with your assets which is not allowed in
this form.
10. May I change my Will? Yes. A Will is not effective until you
die. You may make and sign a new Will. You may change your Will at
any time, but only by an amendment (called a codicil). You can give
away or sell your assets before your death. Your Will only acts on
what you own at death.
11. Where should I keep my Will? After you and the witnesses sign
the Will, keep your Will in your safe deposit box or other safe
place. You should tell trusted family members where your Will is
kept.
12. When should I change my Will? You should make and sign a new
Will if you marry, divorce, or terminate your domestic partnership
after you sign this Will. Divorce, annulment, or termination of a
domestic partnership automatically cancels all property stated to
pass to a former husband, wife, or domestic partner under this Will,
and revokes the designation of a former spouse or domestic partner as
executor, custodian, or guardian. You should sign a new Will when
you have more children, or if your spouse or a child dies, or a
domestic partner dies or marries. You may want to change your Will
if there is a large change in the value of your assets. You may also
want to change your Will if you enter a domestic partnership or your
domestic partnership has been terminated after you sign this Will.
13. What can I do if I do not understand something in this Will?
If there is anything in this Will you do not understand, ask a lawyer
to explain it to you.
14. What is an executor? An "executor" is the person you name to
collect your assets, pay your debts and taxes, and distribute your
assets as the court directs. It may be a person or it may be a
qualified bank or trust company.
15. Should I require a bond? You may require that an executor
post a "bond." A bond is a form of insurance to replace assets that
may be mismanaged or stolen by the executor. The cost of the bond is
paid from the estate's assets.
16. What is a guardian? Do I need to designate one? If you have
children under age 18, you should designate a guardian of their
"persons" to raise them.
17. What is a custodian? Do I need to designate one? A
"custodian" is a person you may designate to manage assets for
someone (including a child) who is between ages 18 and 25 and who
receives assets under your Will. The custodian manages the assets
and pays as much as the custodian determines is proper for health,
support, maintenance, and education. The custodian delivers what is
left to the person when the person reaches the age you choose
(between 18 and 25). No bond is required of a custodian.
18. Should I ask people if they are willing to serve before I
designate them as executor, guardian, or custodian? Probably yes.
Some people and banks and trust companies may not consent to serve or
may not be qualified to act.
19. What happens if I make a gift in this Will to someone and they
die before I do? A person must survive you by 120 hours to take a
gift under this Will. If they do not, then the gift fails and goes
with the rest of your assets. If the person who does not survive you
is a relative of you or your spouse, then certain assets may go to
the relative's descendants.
20. What is a trust? There are many kinds of trusts, including
trusts created by Wills (called "testamentary trusts") and trusts
created during your lifetime (called "revocable living trusts").
Both kinds of trusts are long-term arrangements where a manager
(called a "trustee") invests and manages assets for someone (called a
"beneficiary") on the terms you specify. Trusts are too complicated
to be used in this statutory Will. You should see a lawyer if you
want to create a trust.
21. What is a domestic partner? You have a domestic partner if
you have met certain legal requirements and filed a form entitled
"Declaration of Domestic Partnership" with the Secretary of State.
Notwithstanding Section 299.6 of the Family Code, if you have not
filed a Declaration of Domestic Partnership with the Secretary of
State, you do not meet the required definition and should not use the
section of the Statutory Will form that refers to domestic partners
even if you have registered your domestic partnership with another
governmental entity. If you are unsure if you have a domestic
partner or if your domestic partnership meets the required
definition, please contact the Secretary of State's office.
INSTRUCTIONS
1. READ THE WILL. Read the whole Will first. If you do not
understand something, ask a lawyer to explain it to you.
2. FILL IN THE BLANKS. Fill in the blanks. Follow the
instructions in the form carefully. Do not add any words to the Will
(except for filling in blanks) or cross out any words.
3. DATE AND SIGN THE WILL AND HAVE TWO WITNESSES SIGN IT. Date
and sign the Will and have two witnesses sign it. You and the
witnesses should read and follow the Notice to Witnesses found at the
end of this Will.
SEC. 5. Section 8462 of the Probate Code is amended to read:
8462. The surviving spouse or domestic partner
of the decedent, a relative of the decedent, or a relative of a
predeceased spouse or domestic partner of the
decedent, has priority under Section 8461 only if one of the
following conditions is satisfied:
(a) The surviving spouse , domestic partner, or
relative is entitled to succeed to all or part of the estate.
(b) The surviving spouse , domestic partner, or
relative either takes under the will of, or is entitled to succeed
to all or part of the estate of, another deceased person who is
entitled to succeed to all or part of the estate of the decedent.