BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 26 A
Assembly Member Migden B
As Amended April 8, 1999
Hearing Date: July 7, 1999 2
Family Code; Health and Safety Code; Insurance Code 6
GMO:cjt
SUBJECT
Domestic Partnerships
DESCRIPTION
This bill would define a domestic partnership and provide
for its registration and termination in the state. It
would specify the legal effect of a domestic partnership,
establish the validity of domestic partnerships entered
into outside of the state, and establish the right of a
domestic partner and his or her child and the domestic
partner of a patient's parent to make hospital visits to a
patient.
The bill would require group health plans and group
disability insurers to offer employers coverage for
domestic partners of employees, in the same manner as other
dependents. If an employer elects coverage of domestic
partners by a group health plan or a group disability
insurer, the bill would require that the health plan or
disability insurer that provides hospital, medical or
surgical expense benefits for employees also enroll
domestic partners in the same manner as other dependents.
BACKGROUND
This bill is a partial resurrection of AB 1059 (Migden,
1998), which was vetoed by the Governor. AB 1059 contained
only the health plan aspects of this bill, and did not
include a definition of domestic partners.
The domestic partnership portion of the bill is a
(more)
AB 26 (Migden)
Page 2
resurrection of AB 2810 (Katz) of 1994, which was vetoed.
SB 75 (Murray), previously approved by this Committee,
contains language very similar to this bill vis-?-vis
domestic partnership creation, registration, and
termination.
According to the 1990 census, there are approximately
500,000 unmarried couples in California, 93 percent of
which are heterosexual couples and 7 percent are same-sex
couples. Of the 500,000 unmarried couples, 35,000 are
senior citizen couples who are not married because of
social security or other pension restrictions.
CHANGES TO EXISTING LAW
Existing law provides for the creation of marriages,
specifies the rights and obligations of spouses during
marriage, and provides the procedure for the termination of
marriage and the division of marital property and
obligations after death or marriage.
This bill would define the term "domestic partners" and
require that a domestic partnership meet all of the
following:
Both persons have a common residence.
Both persons agree to be jointly responsible for each
other's basic living expenses incurred during the
partnership.
Neither person is married or a member of another domestic
partnership.
The two adults are not related to each other such that
they could not be married to each other under existing
law.
Both persons are at least 18 years of age.
Both file a Declaration of Partnership with the Secretary
of State, as provided.
This bill would require the Secretary of State to provide
forms for the registration and termination of domestic
partnerships, to distribute such forms in each county, and
to establish and charge fees for the actual costs of
processing these forms. Termination of a partnership would
occur under one of the following scenarios:
AB 26 (Migden)
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1) One partner serves on the other a written notice
that he or she is terminating the partnership;
2) One of the domestic partners dies;
3) One of the domestic partners marries;
4) The domestic partners no longer have a common
residence.
A Notice of Termination of Domestic Partnership would be
filed with the Secretary of State, and all third parties to
whom a copy of the Declaration of Partnership had been
given would have to be notified.
The bill would define the legal effect of creating a
domestic partnership and would expressly provide that
registration of the domestic partnership would not
establish any rights except those specifically provided in
the bill, and that upon termination of the partnership the
partners shall incur none of the obligations to each other
that the bill would establish.
The bill would recognize domestic partnerships validly
entered into and recognized in other jurisdictions.
The bill would require health facilities to allow domestic
partners, their children, and the domestic partner of a
patient's parent to visit a patient in the facility, except
where no visitors are allowed or other specified
conditions.
The bill would require a group health care service plan or
group disability insurer that provides hospital, medical or
surgical expense benefits to offer to employers or
guaranteed associations coverage for the domestic partner
of an employee or subscriber and to inform employers of the
availability of this coverage.
The bill would further require that, if an employer elects
to purchase coverage for domestic partners of employees or
subscribers, the health care service plan or disability
insurer enroll as a dependent the domestic partner of said
employee or subscriber, in accordance with the terms and
conditions applicable in general to all dependents under
the plan.
COMMENT
AB 26 (Migden)
Page 4
1.Need for the bill
According to the statistics quoted from SB 75 background
material, hundreds of thousands of Californians cohabit
without the benefit of marriage, yet their relationships
could be as stable as the married couples around them.
Especially to senior citizens, cohabitation with a
trusted friend, male or female, could give them
companionship, security and independence they so need at
this time of their lives. Yet, many would not, or could
not, marry due to restrictions on social security or
other pension benefits that would affect their incomes.
The author states that AB 26 will help resolve the
inequity in law with respect to health benefits available
to employees or other group health plan subscribers.
Some health plans currently offer benefits to spouses
that are not available to a subscriber's partner because
the subscriber and partner are not married. The problem
is the same for heterosexual couples, same-sex couples,
and elderly couples who form committed and exclusive
relationships, proponents say. AB 26 would ensure that
"unmarried couples will not be denied access to health
benefits for their partner solely because of their sexual
orientation or marital status."
2. Opponents' concerns
Opponents, the Committee on Moral Concerns, asserts that
there is no need for AB 26 because the bill doesn't
confer on persons who would register as domestic partners
any more rights than they have under current law. If
they are adult friends, the CMC states, there is no
reason for them to register; they are free to get their
own job, and live with whom they please. If they are
heterosexual couples and they are "unwilling to commit to
each other in a real marriage, the taxpayer-supported
state government should not commit to their relationship
either."
"The historical family arrangement works best for
society. Struggling families do not need their tax
AB 26 (Migden)
Page 5
burden increased to recognize and support non-dependent
adult relationships, which is all domestic partnerships
really are. ?.Our society now suffers from high rates of
divorce, spousal and child abandonment, child neglect,
and illegitimacy. We cannot afford to further devalue
the family with a new easy-in, easy-out semi-marriage.
This bill will hurt children." -- Committee on Moral
Concerns, Sacramento
An individual who has had seven years of experience as a
Marriage and Family Therapist specializing in
partnerships of all kinds, asserts that "domestic
partners" are "the least stable of family units,
regardless of their sexual orientation. The rate of
'partner turnover' makes them difficult to keep track of
and will open this kind of legislation to a great deal of
costly abuse and fraud." This opponent and others also
contend that the bill could "drive up the cost of
healthcare and disability insurance, which, we as
taxpayers, will have to pay for directly through our
insurance plans or indirectly through taxes."
In addition, the Secretary of State is opposed to the
bill, based on implementation concerns. (See Comment 8 on
Page 10.)
4. Health plan coverage for domestic partners
This bill would require group health care service plans
that provide hospital, medical, or surgical expense
benefits to offer coverage to employers or guaranteed
associations for the domestic partner of an employee or
subscriber, and would require that the health care
service plan inform employers and guaranteed associations
of the availability of coverage.
Should an employer or guaranteed association elect to
purchase coverage for domestic partners, the group health
care service plan must enroll domestic partners who wish
coverage, under the same terms and conditions of group
coverage applicable to all dependents.
Similarly, a group disability insurer that provides
hospital, medical or surgical benefits would be required
to offer coverage to employers and guaranteed
AB 26 (Migden)
Page 6
associations for the domestic partner of an employee or
subscriber and if the employer elects to purchase the
coverage, the group disability insurer must enroll the
domestic partner under the same terms and conditions as
other dependents enrolled in the plan.
The author emphasizes that this bill would not require
employers to provide domestic partner benefits; requiring
the health care service plan to offer the coverage
however would give the employer the choice to do so.
This would also make it easier and less expensive for
those small and medium sized employers who do want to
provide benefits to domestic partners, but who do not
have the bargaining strength of large companies and
municipalities.
Further, employers who choose to obtain this coverage for
employees may require the employee to pay the premium, as
would be the case with most dependent coverage, and if
the employer decides to pay the premium, it would be
fully deductible as a business expense. Insurers and
HMOs, proponents state, would not suffer unreimbursed
costs, as they will be able to charge a premium for the
coverage.
Lastly, the author cites statistics that show 60 percent
of all Californians support allowing domestic partners to
receive benefits such as health coverage, pensions,
family leave and death benefits. Reports from
institutions such as the University of California
indicate that extending health benefits to the partners
of gay and lesbian employees has cost UC far less than
predicted, adding only about $1 million to its yearly
$442 million health insurance bill (Los Angeles Times,
11/6/98). Further, the University stated, the year-old
UC policy has not spawned any costly lawsuits, as was
suggested when then-Governor Wilson mounted an all-out
fight opposing the adoption by the Regents of a policy to
include same-sex domestic partners in the University's
health plan. The argument was that lawsuits would come
from unmarried heterosexual couples who would want
coverage. To date, no lawsuit has been filed.
4. Domestic partnership: comparison to SB 75 (Murray);
remaining issues to reconcile
AB 26 (Migden)
Page 7
Because both SB 75 and AB 26 would define "domestic
partners" and establish the procedure for the creation,
registration, and termination of a domestic partnership,
the author of AB 26 has agreed to amend into the bill
many of the amendments made to SB 75 when it was heard in
this Committee (most of them technical, such as requiring
joint filing of registration of partnership with the
Secretary of State). However, there are remaining
important issues to reconcile, which should be resolved
to avoid inconsistent policies.
a) Question of preemption of local ordinances
The provisions of SB 75 would preempt, on and after
July 1, 2000, any local ordinance or law that provides
for the creation of a domestic partnership, except that
a local jurisdiction may retain or adopt policies or
laws that offer rights to domestic partners within that
jurisdiction that are in addition to the rights
established by state law. In other words, SB 75 would
set a minimum floor. (SB 75 would also provide that
pre-existing domestic partnerships created under a
local ordinance remain valid.)
This preemption language is absent in AB 26.
Proponents of AB 26 indicate their fear that with state
preemption of local ordinances, those domestic
partnerships that had qualified previously under the
local rules may lose status, and that broader benefits
granted by certain jurisdictions may not then be
granted to otherwise qualifying domestic partners.
However, since not all jurisdictions in the state have
adopted local ordinances and since the definition of
domestic partnerships is not uniform across the state,
having a basic definition of the term may be helpful in
the long run to all health care services plans and
businesses/associations that purchase coverage for
their employees or subscribers. Further, the
preemption language in SB 75 preserves pre-existing
domestic partnerships and would not prevent local
jurisdictions from offering more or broader rights to
domestic partners within their jurisdictions.
Language for an amendment to SB 75 has been drafted to
clarify that any local jurisdiction may adopt
AB 26 (Migden)
Page 8
ordinances or policies that offer rights to domestic
partners or that impose duties on third parties
regarding domestic partners that are in addition to the
rights and duties provided by SB 75. If AB 26 is
amended to include a preemption provision, this
language should be included.
SHOULD THESE BILLS BE CONFORMED ON THE PREEMPTION
ISSUE?
b) Issues regarding property acquisition and ownership
The Committee amended SB 75 to provide clearly that
the formation of a domestic partnership under its
provisions would not create any interest in any
property, real or personal, owned by one partner in
the other partner. The intent of the amendment was to
set the basis for any disputes regarding ownership of
property in the event of termination of the domestic
partnership, and to encourage the domestic partners to
set forth in writing their agreements with regards to
property ownership. This bill does not address these
property issues, the absence of which could lead to
contentious litigation in the event of a termination.
The following language was adopted in SB 75 to address
these property issues. If amended into AB 26, it should
be subdivisions (b) and (c)
Section 299.5.
The filing of a Declaration of Domestic Partnership
pursuant to this division shall not change the
character of property, real or personal, or interest
in real or personal property owned by either domestic
partner or both of them prior to the date of filing of
the declaration.
The formation of a domestic partnership under this
division shall not in and of itself create in one
partner any interest in any property, real or
personal, owned by the other partner. Any property or
interest acquired by the partners during the domestic
partnership where title is shared shall be held by the
partners in the proportion of interest assigned to
each partner at the time the property or interest was
AB 26 (Migden)
Page 9
acquired, unless otherwise expressly agreed in writing
by both parties. Upon termination of the domestic
partnership, this subdivision shall govern the
division of any property jointly acquired by the
partners.
SHOULD THESE PROPERTY ISSUES BE CLARIFIED?
c) Income and estate tax liability
Similarly, AB 26 does not address any issue regarding
liabilities that could be created by a domestic
partnership, although it does provide that upon
termination of the partnership neither partner would
incur any of the obligations to each other created by
the bill (such as responsibility for basic living
expenses). The bill also does not address the effect
of the domestic partnership on individual income or
estate tax liabilities of the partners.
In SB 75, the following language was adopted to deal
with tax liability:
The formation of a domestic partnership under this
division shall
not change the individual income or estate tax liability
of each
partner prior to and during the partnership, unless
otherwise
provided under another state or federal law or
regulation.
SHOULD THIS TAX LIABILITY ISSUE BE CLARIFIED?
d) Basic living expenses definition
The definition of "basic living expenses" for which
both domestic partners would be responsible continues
to be a point of debate between AB 26 proponents and
SB 75 proponents. While SB 75 now covers food,
clothing, transportation, shelter, utilities and all
other costs directly related to the maintenance of the
common household of the common residence of the
domestic partners, AB 26 would cover only food and
shelter. The expanded definition of "basic living
AB 26 (Migden)
Page 10
expenses" was adopted at the Committee hearing on SB
75, due to concerns that joint expenses incurred for
utilities (telephone, gas, electric), direct household
maintenance (repairs such as plumbing), transportation
(shared expenses for gasoline, car) and clothing (a
basic necessity for all intents and purposes) should
be the joint responsibility of the domestic
partnership.
While there has been more debate over whether
"clothing and transportation" ought to be a "basic
living expense" for which the domestic partners would
be jointly responsible, utilities and other direct
household maintenance expenses have been accepted by
SB 75 proponents.
There are three possible resolutions for this issue:
1) leave AB 26 as is, with the narrowest definition
or;
2) adopt the mini-expanded version (leaving
clothing and transportation
out) or;
3) adopt the current, expanded version now in SB
75.
SHOULD THE DEFINITION OF "BASIC LIVING EXPENSES" BE
BROADENED OR LEFT AS IS?
e) Protection of creditors
To protect creditors, both SB 75 and the original
version of AB 26 contained language stating that any
person to whom expenses incurred for the basic living
expenses of the domestic partners are owed may enforce
their rights to payment against the partners. The
current version of AB 26 removes this language, while
SB 75 clarified the responsibility to third-party
creditors.
SUGGESTED AMENDMENT: Under the definition of "joint
responsibility," include language protecting creditors
who extend credit in reliance upon the domestic
AB 26 (Migden)
Page 11
partnership and the agreement of the partners to be
jointly responsible for the expenses.
5. Jurisdictions and companies that already provide
benefits to domestic partnerships
Information provided by the author and background
material from SB 75 indicate that there are hundreds of
cities and municipalities, colleges and universities,
private employers, labor unions, and even the U.S. House
of Representatives that recognize and/or provide benefits
to domestic partners.
In California, among the local governments with domestic
partnership policies are the Cities of Alameda, Berkeley,
Laguna Beach, Los Angeles, Oakland, Petaluma, Sacramento,
San Diego, Santa Barbara, Santa Cruz, West Hollywood,
City and County of San Francisco, Counties of Los
Angeles, Marin, San Mateo, Santa Cruz, and the Santa Cruz
Metro Transit System. Ten university systems, including
the University of California, the University of Southern
California, Golden Gate University, and the California
Institute of Technology, Pasadena have similar policies.
In the California private sector, 129 for-profit,
not-for-profit and union organizations have chosen to
provide benefits to domestic partners, including such
organizations as Levi Strauss & Co., Novell, Kaiser
Permanente Foundation Health Plan, Inc., International
Brotherhood of Teamsters #70, Southern California Gas
Co., Ticketmaster Group, Inc., Dow Chemical, Mattel,
Eastman Kodak, IBM, Northwest Airlines, Pacific Stock
Exchange, Patagonia, Inc., Paramount Pictures, Seagate
Technology, Inc., Silicon Graphics, AFSCME #57 and #827,
Consumers Union, Bank of America, Apple Computer, Viacom,
CBS, ABC, PBS, FOX, Disney Corporation, and Warner
Brothers.
Some of the benefits provided by the above list of
organizations include dental and health benefits for both
AB 26 (Migden)
Page 12
same-sex and opposite-sex domestic partners, family leave
and bereavement benefits.
6. Hospital visitation rights
Many supporters of both AB 26 and SB 75 support the bills
because of the provision that would require a health
facility to allow a patient's domestic partner, the
children of the patient's domestic partner, and the
domestic partner of the patient's child or parent to
visit the patient, except under specified circumstances
(such as, the patient doesn't want the visit, no visitors
are allowed, the visit would pose a danger to the patient
or others).
"Indeed, such visitation rights would do nothing more
than recognize the patient's need and right to love and
support of those closest to the patient during
hospitalization, and the concomitant need and right of
the patient's partner to be by the side of his or her
loved one during that time. Unfortunately, in some
hospitals, a "spouse or immediate family only" visitation
rule (e.g., in an intensive care unit) has been used to
prohibit the partner of a seriously ill or dying man or
lesbian from visiting his or her loved one; no civilized
society should tolerate such inhumane practices." --
People for the American Way 6/29/99 letter.
7. Recognizing out-of-state domestic partnerships
This bill would recognize as valid those domestic
partnerships entered into outside the state, which would
be valid in the jurisdiction where the partnership was
created. The State of Massachusetts as well as cities
such as Atlanta (GA), Ann Arbor (MI), Chapel Hill (NC),
District of Columbia (DC), Hartford (CT), Ithaca (NY),
Provincetown (MA), Seattle (WA), East Lansing (MI),
Cambridge (MA), Madison (WI) have instituted domestic
partnership registries.
8. Secretary of State: concerns
The Secretary of State is concerned about the effective
date of the bill. He suggests that the effective date of
the bill be changed to July 1, 2000, to allow appropriate
AB 26 (Migden)
Page 13
funding to be placed in the Secretary of State's budget
to cover the automated system necessary for start-up of
the registry.
SHOULD THE EFFECTIVE DATE OF THE BILL BE CHANGED TO JULY
1, 2000?
The Secretary of State further suggests that registration
be done at the local level, not at the state, because
vital statistics have traditionally been recorded and
maintained at the local level. He also states that
requiring domestic partners to register with the state
would be more burdensome for them than is currently
required for engaged couples who can walk into a local
government facility to obtain a marriage license.
The Secretary of State would be required, under this
bill, to establish fees for the processing of forms for
the registration and termination of domestic
partnerships.
All marriage license fees and confidential marriage
certificate fees in California include an add-on fee of
$23, to be used for funding domestic violence shelters
and programs. These shelters and programs are available
to those who need the services, whether they are married
or not.
SHOULD THE SAME ADD-ON FEE BE ADDED TO FEES CHARGED FOR
THE REGISTRATION OF A DOMESTIC PARTNERSHIP?
9. AB 1059: Governor's veto message
Last year, AB 1059 (Migden) was sent to the Governor, who
vetoed it with this message:
"Domestic partner health benefit coverage is an issue
that is more appropriately left to negotiations between
employers and employees. This coverage is available for
both large and small employers who wish to provide the
benefit, as evidenced by the many employers who choose to
do so.
This bill would also increase the cost of health
insurance. No definition for "domestic partner" is
AB 26 (Migden)
Page 14
provided?. The lack of definition for "domestic partner"
lends itself to instability, fraud and adverse
selection?"
The problem of defining "domestic partner" has been taken
care of by AB 26.
10. The California Family: dealing with its changing
character
Some eight years ago, the Legislature appointed a Joint
Legislative Task Force on the Changing Family, to study
the nature of different forms that the California family
was evolving into, and to make recommendations to the
Legislature as to how the needs of that changing family
could be better met. The task force found that indeed,
the traditional structure of the family, as it was known
in the 50's and 60's, had changed over the years. Today,
there are as many forms that are "the family" as people
in growing and fluid relationships could fashion to
provide some stability to their lives. The traditional
"nuclear family" is no longer the dominant description of
the family in California, rather, the concept of family
has been extended to include stepparents, grandparents,
parents-in-law, and, in many cities, even domestic
partners. Children have learned to have multiple
families, as their biological parents get divorced,
remarry and reconstitute new, extended families.
This session, several bills have been introduced to deal
with the changing needs of this changing family. SB 1173
would provide status for a caring de facto parent to
maintain a long-term relationship with a child; SB 75 and
AB 26 would acknowledge that domestic partners, whether
they be of the same sex or not, should have some rights
and privileges even though the sanctions of a legal,
traditional marriage are not available; and SB 442 would
allow the family of an aging, vulnerable person to
protect him or her and his or her property from those who
prey on the elderly, even after death. These are major
steps in filling the gaps in family law and other areas,
where existing law is insufficient or non-existent.
Support: Service Employee International Union (SEIU);
AB 26 (Migden)
Page 15
American Civil Liberties Union (ACLU); City and
County of San Francisco; California Teachers
Association; City of West Hollywood; Elections
Committee of the County of Orange (ECCO); L.A. Gay
and Lesbian Center; Congress of California Seniors;
California Nurses Association; California School
Employees Association; California Alliance for Pride
and Equality (CAPE); East Bay Municipal Utility
District; Older Women's League of California;
California National Organization for Women (NOW);
Association of Bay Area Governments; Santa Barbara
Stonewall Democratic Club; Academic Senate of the
California State University; California Child, Youth
& Family Coalition (CCYFC); California Professional
Firefighters (CPF); People For the American Way;
Wildcat International; California State Employees
Association; Hit Construction, Fresno; Central
California Alliance; Friends Committee on
Legislation of California; Kaiser Foundation Health
Plan, Inc.; California Church Impact; Inland Empire
Lesbian and Gay Democratic Club; National Center for
Lesbian Rights; Parents, Families & Friends of
Lesbians & Gays, San Jose/Peninsula Chapter;
California Federation of Teachers; numerous
individuals
Opposition: Secretary of State Bill Jones; California
Catholic Conference; Committee on Moral Concerns;
Osborne Neighborhood Church; Calvary Chapel Grass
Valley; Central Assembly; Los Gatos Christian
Church; Women V.I.P.s (Volunteers in politics);
numerous individuals
HISTORY
Source: Author
Related Pending Legislation: SB 75 currently in the
Assembly Judiciary
Committee
Prior Legislation: AB 1059 (Migden, 1998) vetoed
Prior Votes:Asm. Health (Ayes 9. Noes 4.)
Asm. Appr. ( Ayes 14. Noes 7.)
AB 26 (Migden)
Page 16
Asm. Flr. (Ayes 41. Noes 38.)
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