BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
SB 75 S
Senator Murray B
As Introduced
Hearing Date: April 20, 1999 7
Family/Probate Codes 5
GMO:cjt
SUBJECT
Domestic Partnerships
DESCRIPTION
This bill would enact the Domestic Partnership Act of 1999
(the Act). It would define who "domestic partners" are,
provide for the registration and termination of domestic
partnerships, and specify some rights that would be
accorded to domestic partners, such as patient visitation
in a health facility and participation in conservatorship
proceedings as the domestic partner of the conservatee.
The bill would preempt any local ordinance or law
authorizing the creation of a domestic partnership, as
specified, on or after January 1, 2000, except that
ordinances or laws which add to the rights of domestic
partners established under this bill would be retained.
The bill would establish that any domestic partnership
entered into outside of this state, which would be valid by
the laws of the jurisdiction under which the domestic
partnership was created, shall be valid in this state.
Lastly, the bill would make changes to the current
Statutory Will form to provide for the selection of
domestic partners as beneficiaries of the Will.
BACKGROUND
This bill is a resurrection of AB 54 (Murray) of the 1997
session, which died on the Assembly Floor. Similar bills
(more)
SB 75 (Murray)
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were introduced in 1994 [AB 2810 (Katz), vetoed] and in
1995 [AB 627 (Katz), failed in the Assembly Judiciary
Committee]. All bills would have recognized domestic
partnerships in California.
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.
Already 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.
CHANGES TO EXISTING LAW
Existing law provides for the creation of valid marriages,
specifies the rights and obligations of spouses during
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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 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:
1) One partner serves on the other a written notice
that he or she is terminating the partnership;
2) One of the domestic partner 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 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.
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The bill would recognize domestic partnerships validly
entered into and recognized in other jurisdictions and
would preempt all local ordinances and laws creating
domestic partnerships within the state on or after January
1, 2000, permitting the retention or adoption only of those
policies, ordinances, or laws that provide rights to
domestic partners in addition to those provided by this
bill.
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 make changes in the Probate Code to accord
domestic partners the right to be notified of
conservatorship proceedings, to give domestic partners
preference in the court's selection of a conservator, and
generally to participate in all actions concerning a
conservatee who is a domestic partner. Lastly, the bill
would make changes to the Statutory Will form to allow for
the selection of domestic partners as beneficiaries under
the Will.
COMMENT
1.Need for the bill
The author states that SB 75 is "designed to aid,
strengthen, protect, and promote committed family
relationships."
The statistics stated in the background section were
provided by the author. According to those numbers,
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
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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.
Although some accommodations are already available under
existing law for "friends" to be regarded as "relatives,"
recognizing the status of domestic partners as being more
than mere "friends" would give heterosexual and same-sex
partners some basic rights in those areas where having
someone trustworthy and who has made a commitment to care
for a partner could make a difference - in areas of
health care and conservatorships. SB 75 would do
precisely that.
2. Domestic partner: definition
This bill would define "domestic partners" as "two adults
who have chosen to share one another's lives in an
intimate and committed relationship of mutual caring."
The definition is couched in softened words, but it
nevertheless carries the overtones of a social contract.
Existing law defines marriage also as a social contract,
but to be valid a marriage must be entered into
willingly, without fraud or force, both parties being of
sound mind - i.e., competent. Especially because the two
adults would have to be responsible for each other's
basic living expenses while in the partnership, it would
be important that they be competent when they enter the
partnership.
SHOULD COMPETENCE BE A REQUIREMENT FOR A PERSON TO BECOME
A DOMESTIC PARTNER?
The definition should further clarify that a domestic
partner is a person who has filed a Declaration of
Partnership that has not been terminated.
3. Creating a domestic partnership: definitions
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Assuming both partners fulfill the requirements of a
domestic partnership as described above (18 years or
older, not married or involved in another partnership,
have a common residence, agree to be jointly responsible
for each other's basic living expenses), the domestic
partnership would not be acknowledged under the Act until
both partners file a Declaration of Domestic Partnership
with the Secretary of State.
The language in this provision is not clear whether each
partner could file a declaration separately, or whether
both signatures should be on the same document, each
signature being acknowledged by a notary public.
"Having a common residence" is defined to mean that the
two partners are "cohabitants." Under the bill, the
legal right to possess the residence need not be in both
partners' names, one or both partners could have other
residences, and they would not cease to be cohabitants if
one leaves the common residence but intends to return.
Using this definition, two people could register as a
domestic partnership if they share a vacation house that
the partners visit for a short period of time not even at
the same time, as long as each intended to return.
SHOULD THIS "COMMON RESIDENCE" BE THE PRIMARY RESIDENCE
OF BOTH PARTNERS?
The bill would require that both persons who wish to
register as a domestic partnership agree to be jointly
responsible for each other's basic living expenses during
the partnership.
"Basic living expenses" would be defined as the costs of
food and shelter and also "any other cost" such as
medical care, if some or all of the cost is paid as a
benefit because a person is another person's domestic
partner. This could be the "co-payment" on a medical
benefit for example, or prescription drugs not covered by
insurance. However, suppose the partners purchase some
things that are not food, shelter, or medical care,
together or for each other on credit. Would a creditor be
able to look to both partners for payment for non-basic
living expenses incurred by either or both partners? The
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vagueness of the definition could cause controversy
between creditors and the domestic partners.
SHOULD THIS DEFINITION BE MORE COMPREHENSIVE AND INCLUDE
OTHER NECESSITIES OF LIFE?
4. Registration and termination of domestic partnerships:
Secretary of State function and concerns
The Secretary of State would have the primary
responsibility of preparing and distributing forms to be
used for registering domestic partnerships, primarily the
Declaration of Domestic Partnership and the Notice of
Termination of Partnership.
a. A Declaration of Domestic Partnership must be filed
by each person who wants to be a domestic partner. The
bill does not specify that the declaration must be
signed by both partners, only that each must sign and
file one. Further, the bill would not require the
Secretary of State to acknowledge receipt and
registration of the declaration.
SHOULD THE SECRETARY OF STATE RETURN A COPY OF THE
DECLARATION, STAMPED "FILED" OR "REGISTERED," TO THE
DOMESTIC PARTNERS?
A stamped "filed" or "registered" copy would be
useful, especially for purposes of signing up for
health benefits or other benefits available to
domestic partners.
The Secretary of State would be required to establish
fees for the processing of the forms for the
registration and termination of domestic partnerships.
All marriage license fees and confidential marriage
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 FEES BE ADDED ON TO FEES CHARGED FOR
REGISTRATION OF DOMESTIC PARTNERSHIPS?
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b. A new Declaration of Domestic Partnership could not
be filed until six months after a Notice of Termination
of Partnership was filed with the Secretary of State in
connection with the termination of the most recent
partnership. This would mean that a partner who had
just terminated a domestic partnership could not
register a new partnership until six months after
filing a notice with the Secretary of State.
An exception to the waiting period would be if the
partnership was terminated because one partner died.
However, the partnership also could be terminated by
the marriage of a partner. Should that circumstance
also be an exception?
c. The Notice of Termination of a Domestic Partnership
must be filed with the Secretary of State by one of the
domestic partners, who would be required to send a copy
of the termination notice to the other partner at that
partner's last known address.
Under this bill, the domestic partnership would be
terminated upon the marriage or death of one party,
when one partner gives or sends to the other partner a
written notice that he or she is terminating the
partnership, or when the domestic partners no longer
have a common residence. Since this bill would
formalize the domestic partner relationship, the rules
for registration and termination of the partnership,
and for providing notice to the other partner, should
be more formal than established by this bill. For
example, the written termination notice that one
partner "gives or sends" to the other should be done by
certified mail, return receipt requested, so that there
could be some certainty that the other partner is
notified in a formal way that the partnership was
terminated unilaterally. (For a dissolution of
marriage, the requirements are more exacting - personal
service of the petition.)
The bill would further provide that the failure to file
a Notice of Termination with the Secretary of State, or
to give notice to a third party would not delay or
prevent the termination of the partnership. This could
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invite plenty of litigation because there might be no
independent, certain method of determining when a
partnership terminated.
SHOULD THE RULES FOR TERMINATION/NOTICE OF TERMINATION
PROVIDE MORE CERTAINTY?
Providing certainty to these items would avoid
litigation sure to arise from creditors and other third
parties whose rights could be prejudiced by the
termination of the partnership.
Under the bill, the party who gave a third party a copy
of the Declaration of Partnership would be required to
notify that third party of the termination of the
partnership within 60 days of the temination of the
partnership. This is another reason why a date certain
should be attributed to the termination of the
partnership.
d. The Secretary of State is concerned about the
effective date of the Act. He suggests that the
effective date of the bill be changed to July 1, 2000
to allow appropriate funding to be placed in the
Secretary of State's budget to cover the automated
system necessary for start-up of the registry.
The Secretary 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.
5. Legal effect of domestic partnership: rights bestowed
a. The only obligations the domestic partners would have
to each other would be those that would create the
domestic partnership - i.e., the joint responsibility,
each to the other, of taking care of the other's basic
living expenses. The rights that would be conferred on
domestic partners would be specified in the bill, and
those are:
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A health facility would be required to allow a
victim's domestic partner, children of the domestic
partner, and the domestic partner of the patient's
parent or child to visit the facility (unless no
visitors are allowed, or the visitor's presence would
endanger the patient or disrupt operations of the
facility, or the patient has indicated he/she does not
want the visitor to visit);
A domestic partner would be able to participate and
have standing to appear in conservatorship proceedings
where the other partner is the conservatee or proposed
conservatee, be eligible for appointment as
conservator (with the same preference as a spouse) and
nominate a conservator, receive notice of all
hearings, petition the court for an accounting if
justified or for the appointment of a successor
conservator or for distribution of the surplus income
of conservatee's estate for the support, maintenance
and education of the conservatee and those entitled to
the conservatee's support, and other rights related to
conservatorship proceedings. The bill would further
make conforming amendments to the Probate Code.
b. 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, Hartford (CT), Ithaca (NY),
Provincetown (MA), Seattle (WA), East Lansing (MI),
Cambridge (MA), Madison (WI) have instituted domestic
partnership registries.
6. The Statutory Will: domestic partners as beneficiaries
This bill would not bestow any rights to a domestic
partner other than what are described in comment 5.
Although the bill would make changes to the Statutory
Will, a simple document available at stationery stores
statewide, the changes would not confer any rights to the
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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 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) is. Placing the
domestic partner in the same box as the spouse does not
legally elevate the stature of the domestic partner to
that of a spouse.
Proponents claim this would make it easier for a domestic
partner to will his or her estate to the other partner.
7. Forgotten complications of forming and terminating
relationships
Unfortunately, there are complex issues involved in
business partnerships and marital partnerships that a
domestic partnership cannot escape, no matter how simple
a structure we try to formulate.
The bill does not clearly define the character of
property acquired by the domestic partners during the
partnership or how such property is to be divided in the
event of a termination. If the intent of the bill is to
not effect any change in the character of any property
owned by either partner prior to the creation of the
partnership, or to look only to possession or title to
property to determine ownership upon termination of the
partnership, then it should so state.
The bill also does not detail any tax consequences of the
relationship, if any. If the intent of the bill is that
the formation of the domestic partnership would not
affect the income and estate tax liabilities of the
partners, it should clearly state so.
8. Preemption and transition
On January 1, 2000, any local ordinance or law providing
for the creation of a domestic partnership would be
preempted under this bill. All domestic partnerships
created before that date would remain valid, but they
would be governed by the provisions of this bill.
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The bill is silent as to whether or not the domestic
partnerships that were created before January 1, 2000
should register with the Secretary of State.
SHOULD PREVIOUSLY CREATED DOMESTIC PARTNERSHIPS REGISTER
ON JANUARY 1, 2000, OR BY ANOTHER DATE?
Any local ordinance or law that would provide greater
rights in addition to the ones conferred by this bill on
domestic partners would be retained under this bill.
9. Similar Bill: AB 26 (Migden)
AB 26 (Migden) is an almost identical bill, except AB 26
goes further than
SB 75 in the following respects:
a. AB 26 would require a statement of veracity to
accompany the Declaration of Domestic Partnership to be
registered with the Secretary of State, a violation of
which would be a misdemeanor.
b. AB 26 would require a group health care service plan
and a policy of disability insurance that provides
hospital, medical, or surgical benefits to offer
coverage to employers and guaranteed associations for a
domestic partner of an employee, subscriber, or insured.
10. Supporters' comments
There is overwhelming support for this bill. The
committee has received letters of support too numerous
to list individually. To encapsulate the contents of
their letters, however, following are some excerpts:
"CCFYC members believe in the dignity of all family
forms and therefore support the recognition of domestic
partnerships. This legislation recognizes the
importance of state-sanctioned bonds between two people
who have chosen to make a life together. Children and
youth being raised in domestic partnerships are entitled
to the same community support accorded other families."
-- California Child, Youth and Family Coalition
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"Individuals have often been prohibited from visiting a
hospitalized person with whom they have established a
domestic partnership because they are not considered
"family." Non-relative partners have no legal standing
in conservatorship proceedings. SB 75 secures such
visitation and conservatorship rights." -- California
Federation of Teachers
"There are too many reasons to mention why two people
find it necessary to live together without marrying.
When one does not provide for recognition of this
arrangement, one runs the risk of imposing great
hardships and discrimination on the domestic
partners?.Older men and women often live without
marriage for economic reasons. It seems unreasonable to
expect people on limited income to live on less income
because they decide to marry. Then there are the older
friends who have lost a spouse - either men or women -
who find for reasons of companionship as well as economy
that living together is best for them?" - Older Women's
League of California
"People in nontraditional relationships should not be
denied the very simple and basic rights which are
afforded others. If these are close and stable
relationships which people entered into knowingly, then
domestic partners should not be punished. These
include seniors who may not, for a variety of reasons,
be able to be married in a traditional way. We see this
bill as a way to treat domestic partners in a reasonable
and fair way." -
Congress of California Seniors
"This bill will give families the right to care for each
other in times of crisis and need by allowing partners
to visit each other in the hospital, make decisions for
each other when one is incapacitated?.Nurses routinely
witness the pain that domestic partners suffer when they
are denied access to their loved one in the hospital.
It is confusing and disorienting to all parties
involved, including the nurse assigned to care for the
patient. Because there are no clear guidelines, nurses
are often caught in the middle of disagreements
regarding families and partners' rights. This bill will
promote responsibility and mutual support between two
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committed adults and will clarify some of the
ambiguities surrounding responsible parties." -
California Nurses Association
"I was fortunate enough to rent a room in a house from a
gay couple for four years. They built a home of
laughter and love that was far more positive than the
home I grew up in. From watching them negotiate
differences, seeing their commitment grow and deepen, I
learned how to make commitments myself, and how to keep
them?. It baffles me that my marriage of seven months
should somehow be "worth" more than their eleven years
together. My husband and I have not?undergone these
tests?My friends' relationship should be worth more than
ours, not less. They deserve to be married, but SB 75
will do." -- Kaitlin Duck Sherwood, Palo Alto
11. Opponents' concerns
Opponents of this bill state that the bill is
unnecessary, as the proposed domestic partners can now
do what this bill would allow them to do. They further
state that the historical family arrangement works best
for society, and that domestic partnership recognition
would devalue true family commitments.
"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
"?.The ramifications of such a misguided attempt to
legislate morality would be far-reaching and its results
would be devastating? This not only puts undue burden on
our business, but also violates our First Amendment
Right to be separate from government interference?" -
Institute for Creation Research, El Cajon
"?. strongly opposes SB 75 which will undermine the
institution of marriage and family. By and large,
"domestic partners" are overwhelmingly same-sex
couples. By equating homosexual partner, or any
unmarried partner, with the time-honored status of
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married spouse, the institution of marriage will be
weakened and undermined?..SB 75 is unnecessary, and will
only serve to undermine the uniqueness of marriage
between a man and a woman?" -
Capitol Resource Institute, Sacramento
12. 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.
13. Other clarifying amendments
On page 5, line 15, after "signature" insert: by
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acknowledgment
On page 5, line 27, after "died" insert: or was married
On page 35, line 7, after "may" insert: be
14. State Bar comments
The Estate Planning, Trust and Probate Law Section of the
State Bar had not taken an official position on this
bill. However, they made numerous comments and suggested
amendments, some of which have been incorporated into
this analysis. Among the suggestions made were:
a. Clarify the definition of "basic living expenses."
b. Clarify what "notarial act" would be required on the
Declaration of Domestic Partnership.
c. Amend Question No. 8 of the Statutory Will questions
to reflect current and
future changes in the estate tax exclusion amount.
d. Clearly define the character of property acquired
during the domestic
partnership and the consequences of a partner dying
without a will.
e. Detail income tax/estate tax consequences of the
relationship.
The section states in its letter: "This proposed
legislation marks a potential large societal and cultural
change, therefore, every attention should be made to
clarify and define the terms because this bill will
stimulate enormous discussion and controversy."
Support: American Association of Retired Persons (AARP) -
California;
California Professional Firefighters; Board of
Supervisors of the City
and County of San Francisco; California Alliance for
Pride and
Equality (CAPE); United Transportation Union,
AFL-CIO; California
Federation of Teachers, AFL-CIO; East Bay Municipal
Utility District;
California School Employees Association (CSEA); Gay
and Lesbian
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Center of Los Angeles; Southern California Women for
Understanding;
AIDS Healthcare Foundation; California Nurses
Association; Asian
Pacific Gays and Friends (West Hollywood); Friends
Committee on
Legislation of California; California Child, Youth
and Family Coalition
(CCYFC); Older Women's League of California (OWL);
Congress of
California Seniors; National Organization for Women
(NOW); 24
individual letters; 17 form letters from individuals
Opposition: Secretary of State Bill Jones; New Life
Christian School; Lila McCarty; Marilyn Gaines;
Committee on Moral Concerns; Institute for
Creation Research; Burton Wesenberg; Capital
Research Institute, Roy and Sherry Schippman
HISTORY
Source: Author
Related Pending Legislation: AB 26 (Migden) currently in
Assembly
Appropriations
Prior Legislation: AB 2810 (Katz, 1994 session, vetoed),
AB 627 (Katz, 1995
session, failed in Assembly Judiciary
Committee), AB 54 (Murray, 1997 session, died
on the Assembly Floor)
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