BILL ANALYSIS
AB 2047
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Date of Hearing: March 28, 2000
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
AB 2047 (Steinberg) - As Amended: March 23, 2000
SUBJECT : DOMESTIC PARTNERS: INTESTATE SUCCESSION: ESTATE
ADMINISTRATION
KEY ISSUE : SHOULD THE RIGHTS OF A DOMESTIC PARTNER BE EXPANDED
TO INCLUDE:
1)THE RIGHT TO INHERIT PROPERTY FROM A PARTNER IF ONE PARTNER
DIES WITHOUT A WILL, AND;
2)THE RIGHT TO BE APPOINTED AS ADMINISTRATOR OF HIS OR HER
DECEASED PARTNER'S ESTATE?
SUMMARY : Establishes intestate succession and related estate
administration rights of domestic partners. Specifically, this
bill expands the legal rights of a registered domestic partner
to include the right to inherit property if one partner dies
without a will, and to be appointed as administrator of his or
her deceased partner's estate, in the same priority position as
a surviving spouse.
EXISTING LAW :
1)Provides, under the intestate succession law, that the
surviving spouse is entitled to a specified share of the
decedent's separate property that is not effectively disposed
of by will. (Probate Code section 6401.) It also provides
for the appointment of a surviving spouse, in a priority order
over other relatives, as the administrator of a decedent's
estate. (Probate Code section 8461 et seq .)
2)Sets forth procedures for the establishment, registration and
termination of a domestic partnership between unmarried,
opposite-sex couples over the age of 62 or same-sex couples at
least 18 years old. (Family Code section 297 et seq .)
3)Does not recognize the right of a registered domestic partner
to inherit property if one partner dies without a will, or to
be appointed as administrator of his or her deceased partner's
estate.
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FISCAL EFFECT : Unknown
COMMENTS : This bill is part of a three-bill package, sponsored
by the California Alliance for Pride and Equality (CAPE), to
expand the legal rights of registered domestic partners. This
bill would expand the legal rights of a registered domestic
partner to include the right to inherit property if one partner
dies without a will, and to be appointed as administrator of his
or her deceased partner's estate, in the same priority position
as a surviving spouse.
Author's Statement in Support : According to the author, "AB
2047 will place registered domestic partners in line to inherit
property if one partner dies without a will. The recent debate
over Proposition 22 made clear that most Californians believe
that domestic partners have - and deserve - rights they don't
currently enjoy, including the right to inherit property. AB
2047 is a modest step that will strengthen families and protect
the economic rights of people in committed domestic
partnerships."
Companion measures - AB 1990 & AB 2211 : There are two
companion, and complimentary, measures to this bill, which are
also scheduled to be heard by this Committee on March 28, 2000.
They are AB 1990 (Romero), which would authorize a registered
domestic partner to make medical treatment decisions on behalf
of his or her partner if the partner is hospitalized and
incapable of giving informed consent, and AB 2211 (Kuehl), which
would: allow domestic partners to participate fully and have
standing to appear in conservatorship proceedings and be
appointed as conservator in the same manner as the spouse of a
conservatee or potential conservatee; revise the statutory will
form to include domestic partners in the class of beneficiaries
to whom a testator may leave assets and property; allow domestic
partners to make funeral arrangements for, and decisions with
regards to the autopsy of, their partner; and allow the domestic
partner to have standing in a wrongful death claim; and allow
domestic partners to recover damages for negligent infliction
for emotional distress to the same extent that spouses are
entitled to do so under California law. AB 2211 would also
recognize domestic partnerships from jurisdictions outside of
the state for purposes of California law. However, to be
eligible for PERS health benefits couples would have to register
with the Secretary of State and meet the eligibility
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requirements of Family Code Section 297.
Background : About nine years ago, the Legislature appointed a
Joint Legislative Task Force on the Changing Family to study the
evolving nature of the California family and to make
recommendations to the Legislature as to how the needs of the
state's changing families could be better met. The task force
found that the traditional structure of the family, as it was
known in the 1950s and 60s, had indeed changed over the years.
Today, the traditional "nuclear family" no longer describes the
majority of families in California. Instead, the concept of
"family" has been extended to include stepparents, grandparents,
parents-in-law, and, in many cities, domestic partners.
Children are relating to multiple families, as their biological
parents get divorced, remarry and create new, extended families.
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.
Based on the March 1998 Current Population Survey, the U.S.
Census Bureau found that out of 5,911,000 unmarried couples
1,674,000 were same sex couples. While the data was not sorted
for couples over the age of 62, there were 188,000 opposite sex
couples over the age of 65.
Already the U.S. House of Representatives, hundreds of cities
and municipalities, colleges and universities, private
employers, and labor unions 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, as well as 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
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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.
AB 26 - California's New Domestic Partnership Law : In 1999,
the Legislature enacted and Governor Davis signed into law AB 26
(Migden - Ch. 588, Stats. 1999), California's first domestic
partnership legislation. AB 26 defines a domestic partnership
and provides for its registration and termination in the state.
It specifies the legal effect of a domestic partnership (as
described below), establishes the validity of domestic
partnerships entered into outside of the state, and establishes
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. AB 26 also authorizes CALPERS to provide health
benefits to domestic partners of those state employees whose
bargaining units have agreed to the extended coverage, and to
domestic partners of local public agency employees whose agency
has requested such coverage from CALPERS.
Definition of domestic partners : AB 26 defines the term
"domestic partners" as "two adults who have chosen to share one
another's lives in an intimate and committed relationship of
mutual caring." (Family Code section 297(a).) In order to
establish a domestic partnership in California, all of the
following requirements must be met:
1)Both persons have a common residence.
2)Both persons agree to be jointly responsible for each other's
basic living expenses incurred during the partnership.
3)Neither person is married or a member of another domestic
partnership.
4)The two persons are not related by blood in a way that would
prevent them from being married to each other in this state.
5)Both persons are at least 18 years of age.
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6)Either of the following: (a) both persons are members of the
same sex; or (b) both persons meet the eligibility criteria
under Title II of the Social Security Act as defined in 42
U.S.C. Section 402(a) for old-age insurance benefits or Title
XVI of the Social Security Act as defined in 42 U.S.C. Section
1381 for aged individuals. Notwithstanding any other
provision of this section, persons of opposite sexes may not
constitute a domestic partnership unless both persons are over
the age of 62.
7)Both persons are capable of consenting to the domestic
partnership.
8)Neither person has previously filed a Declaration of Domestic
Partnership with the Secretary of State that has not been
terminated.
9)Both file a Declaration of Partnership with the Secretary of
State, as provided. (Family Code section 297(b).)
Legal Effect of Registering a Domestic Partnership under AB 26 :
AB 26 narrowly defines the legal effect of creating a domestic
partnership and expressly provides that registration of the
domestic partnership does not establish any rights except those
specifically provided in the legislation, and that upon
termination of the partnership the partners shall incur none of
the obligations to each other that the bill would establish.
(Family Code section 299.5.)
AB 26 sets forth specific rights of a domestic partner with
respect to the visitation of his or her partner in a hospital or
other health facility. (Health and Safety Code section 1261.)
Aside from these hospital visitation rights, and the health
benefits rights for certain state workers, as described above,
AB 26 provides that the filing of a Declaration of Domestic
Partnership with the Secretary of State "shall not change the
character of property, real or personal, or any interest in any
real or personal property owned by either domestic partner or
both of them prior to the date of filing of the declaration."
(Family Code section 299.5(c).) Similarly, it provides that the
filing of a domestic partnership declaration "shall not, in and
of itself, create any interest in, or rights to, any property,
real or personal, owned by one partner in the other partner,
including, but not limited to, rights similar to community
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property or quasi-community property." (Family Code section
299.5(d).)
AB 26 further provides that "[a]ny property or interest acquired
by the partners during the domestic partnership where title is
shared shall be held by the partners in proportion of interest
assigned to each partner at the time the property or interest
was 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." (Family Code section 299.5(e).)
Finally, the legislation provides that "[t]he formation of a
domestic partnership under this bill shall not change the
individual income or estate tax liability of each domestic
partner prior to and during the partnership, unless otherwise
provided under another state or federal law or regulation."
(Family Code section 299.5(f).)
This bill seeks to expand the limited rights of a registered
domestic partner to include the legal right to inherit property
if one partner dies without a will, and to be appointed as
administrator of his or her deceased partner's estate, in the
same priority position as a surviving spouse.
Proposition 22 - California's "Defense of Marriage Act" : In
1996, Congress passed and President Clinton signed into law H.R.
3396, the so-called "Defense of Marriage Act," which allows
states to refuse to recognize same-sex marriages should they
ever become legal in another state. On March 7, 2000,
California voters passed Proposition 22 by a margin of 61-39%.
Proposition 22 added Section 308.5 to the Family Code, to read:
"Only marriage between a man and a woman is valid or recognized
in California." Similar "defense of marriage" acts have been
passed in over 30 states.
Editorial Calls for Legislative Action on Bills Expanding
Domestic Partnership Rights : A series of editorials appeared in
major newspapers around California in the wake of the passage of
Proposition 22, calling for legislative action on bills such as
AB 1990 and its companion measures in order to expand the legal
rights of domestic partners. For example, the Sacramento Bee
noted that the Proposition 22 supporters "pledged during the
campaign that they only sought to strengthen the ban on gay
marriage - not to launch a broader attack on gay rights."
("After Proposition 22: Passage should not signal backtracking
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on gay rights," Sacramento Bee, March 12, 2000.) The Bee
continued: "California has distinguished itself by taking
strong stands for equal treatment for gays and lesbians under
the law. In 1978, voters rejected an initiative that would have
barred gay teachers from working in public schools. Although
today's voters aren't ready to extend equal treatment to the
institution of marriage, the vote should not be interpreted as a
blanket rejection of the humanity of same-sex couples, or of the
children so many are raising. It is no rebuke of their
understandable desire to lead stable and prosperous lives."
( Id .)
In a similar vein, the San Francisco Examiner opined that
attention should now be focused on "achieving full civil rights
for gay couples through legislation that avoids the minefields
of trying to make [gay] marriages legal." ("Alternative to gay
marriage: Proposition 22 denies legal recognition to same-sex
marriages, but the fight for equality for gay couples shouldn't
stop," San Francisco Examiner, March 10, 2000.) The Examiner
continued: "The proposition's backers promised that it was not
an opening wedge to deny gays other rights. Taking them at
their word, we invite them to join a crusade to obtain those
rights - to gain for gays and their partners the same rights
they would enjoy if they were married, only without the marriage
ceremony. ? California already has a statewide domestic
partners registry. That could be the basis for new legislation
spelling out the rights of gay couples to enjoy full equality."
( Id .)
The Examiner then issued this call for action: "Just for a
pleasant change, it would be gratifying if the Legislature
actually legislated on these topics rather than leaving the
tough fights for voters to puzzle out on a forthcoming slate of
ballot propositions. And it would also be a relief to erase the
hyperbole - engaged in by both sides - from future election
campaigns. Let's just enact fair laws." ( Id .)
Recent Significant Domestic Partnership Legislation in Other
States : Recent court cases and legislation in the states of
Hawaii and Vermont regarding the rights of gays and lesbians
have received widespread attention in the media. A brief
overview of these developments is set out below.
Hawaii "Reciprocal Beneficiaries" Legislation - In response to
an ongoing suit which sought to establish the right to same-sex
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marriage ( Baehr v. Anderson ), the Hawaii State Legislature
recently enacted the Reciprocal Beneficiaries law (House Bill
118 - Act 383 of 1997) which extends certain benefits to gay and
lesbian couples that are legally prohibited from marrying one
another. Among the benefits provided under this law are
inheritance rights, the right to bring claims for wrongful death
and other torts, public employee health and retirement benefits
for domestic partners, and the right to consent to postmortem
exams.
Vermont "Civil Unions" Legislation - In December 1999, a
unanimous Vermont Supreme Court ruled in Baker v. State that
same-sex couples must be given the full and equal protections,
benefits, and responsibilities accorded married couples under
state law. The Court instructed the legislature to decide how
to achieve that equality in a "reasonable" period of time. The
Baker Court left it up to the Vermont legislature to decide
whether to allow gay marriages or to create some kind of
domestic partnership instead.
In response to this decision, H.847, an act relating to "civil
unions," was passed by the Vermont House of Representatives on
March 16, 2000. The legislation, which was pending in the
Vermont Senate at the time of the writing of this analysis,
would allow gay couples to form "civil unions" that carry many
of the benefits and responsibilities of traditional marriages.
If it becomes law, as expected, Vermont will have gone much
further than any state to date in sanctioning same-sex unions.
(See "Gays Achieve Breakthrough in Vermont," The Washington Post
Online, March 17, 2000,
http://www.washingtonpost.com/wp-dyn/articles/A26390-2000Mar16.ht
ml.) According to the Washington Post, the Vermont Senate is
expected to approve the measure by the end of April, and
Governor Howard Dean has said that he would sign it if it does
not change significantly. ( Id ., at p. 2.)
Under H. 847, "gay partners may apply for a license from a town
clerk and get their civil union certified by a justice of the
peace, a judge or a clergyman. Partners in a civil union would
be eligible for 300 state benefits given to married couples
covering every phase of life. They could transfer property,
make medical decisions for each other, inherit estates and
oversee one another's burials. Such couples could also file a
joint state income tax return." ( Id .)
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Vermont gay and lesbian couples who enter into a civil union
would also "be subject to burdens similar to those of married
couples. Partners who want to end their civil union would have
to go through a dissolution proceeding in family court, similar
to divorce proceedings. They would also assume each other's
debts." ( Id .)
Intestate Succession and Estate Administration Rights of
Domestic Partners : As noted above, current law does not
recognize the right of a registered domestic partner to inherit
property if one partner dies without a will, or to be appointed
as administrator of his or her deceased partner's estate. This
bill simply provides that a domestic partner has the same
inheritance rights as a surviving spouse, and is entitled to the
same priority order in the appointment as administrator of a
deceased partner's estate.
ARGUMENTS IN SUPPORT : The California Alliance for Pride and
Equality (CAPE), sponsor of the bill, writes that "AB 2047
strengthens families and is a modest step that will protect the
economic interests of people in committed domestic
partnerships." The author explains that under current law, if
one of the partners dies without a will, the surviving domestic
partner is not entitled to inherit any portion of the deceased
partner's estate. This bill will place registered domestic
partners in line to inherit property should one partner die
without a will."
According to CAPE, "this bill is designed to protect the
economic interests of the surviving partner particularly when
the surviving partner may have given up a career to put a
partner through school, raise children, or otherwise made
economic sacrifices to advance his or her partner's career.
Absent these clear guidelines, surviving domestic partners are
often caught in the middle of litigation regarding families and
partners' rights, especially in situations where the immediate
blood families have rejected the deceased partner because of his
or her sexual orientation. This bill encourages domestic
partners to act as a family unit in financial matters and will
protect each of the partners if they make economic sacrifices
for the benefit of the domestic partnership."
Finally, CAPE asserts that "this bill will promote
responsibility and mutual support between two committed adults
and will clarify some of the ambiguities surrounding the rights
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of domestic partners. Without these guidelines, the surviving
partner may suffer undue economic hardships following the death
or his or her partner. Providing the surviving spouse the right
to inherit a portion of his or her deceased partner's estate
will hopefully ensure the continued stability of his or her
economic well being. Without economic stability, the surviving
partner may end up on the state's very limited and scarce
resources."
ARGUMENTS IN OPPOSITION : The Committee on Moral Concerns (CMC)
opposes the bill, stating that "[d]omestic partnerships should
never approach equal relations with marriages. ? Gay and
lesbian couples may register as domestic partners and create
their own wills in any manner they choose. There is no need for
this bill." CMC also contends that "[m]oving toward equalizing
domestic partnerships with marriage will lower our standard of
morality below that of any culture, nation, state, tribe, clan,
or settlement in human history. This bill sends a terrible
message to California's young people, and the rest of the
world." Finally, CMC states that "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."
RELATED PENDING LEGISLATION :
AB 1990 (Romero) and AB 2211 (Kuehl) of 2000, as described
above, are also scheduled for hearing in the Assembly Judiciary
Committee on March 28, 2000.
SB 1050 (Murray) of 1999-2000, which would have established
conservatorship rights for domestic partners and changed the
statutory will form to include domestic partners, failed passage
in the Senate Judiciary Committee on Jan 18th, 2000.
PRIOR RELATED LEGISLATION :
AB 26 (Migden - Chap. 588, Stats. 1999), which created a
statewide Domestic Partnership Registry, hospital visitation
rights, and health benefits for State workers.
AB 107 (Knox) of 1999, which would have authorized state and
local employers to elect to include domestic partners within the
definition of "family members" for the purpose of providing
health benefits under the Public Employees' Medical and Hospital
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Act, died in Senate PERS.
AB 901 (Knox) of 1999, which would have extended to domestic
partners tax preferences for health care costs that are
available to spouses and dependents of employees, died in
Assembly Appropriations.
SB 75 (Murray) of 1999, which would have established a Statewide
Domestic Partnership Registry including hospital visitation
rights, conservatorship rights and changes to the statutory will
form to add domestic partners, was vetoed by Governor Davis.
AB 54 (Murray) of 1997-98, which contained the same provisions
as SB 75, died in the Assembly.
AB 427 (Knox) of 1997-98, which provided the option of domestic
partner health benefits for local agencies contracting with
PERS, died in the Assembly.
AB 1059 (Migden) of 1997-98, which required health plans that
offer benefits to the dependents of an employee or subscriber to
offer those benefits on the same terms to a domestic partner,
was vetoed by Governor Wilson.
SB 841 (Hayden) of 1997-98, which prohibited a public entity
from entering into a contract or other agreement with any
contractor that discriminates in the provision of benefits
between employees with spouses and employees with domestic
partners, died in the Senate.
AB 627 (Katz) of 1995-96, which would have created a Domestic
Partnership Registry, including changes to the statutory will
form and conservatorship rights, died in the Assembly.
AB 1209 (Knox) of 1995-1996, which provided the option of
domestic partner health benefits for local agencies contracting
with PERS, died in the Assembly.
AB 3332 (Kuehl) of 1995-96, which defined "surviving spouse" to
include a domestic partner of a school member or retiree, died
in the Assembly.
SB 2061 (Hart) of 1993-94, which provided the option of domestic
partner health benefits for local agencies contracting with
PERS, died on Senate Concurrence.
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REGISTERED SUPPORT / OPPOSITION :
Support
California Alliance for Pride and Equality (sponsor)
American Civil Liberties Union
California Child, Youth and Family Coalition
California Professional Firefighters
California School Employees Association
Congress of California Seniors
L.A. Gay & Lesbian Center
Older Women's League
Various individuals
Opposition
Committee on Moral Concerns
Traditional Values Coalition
Analysis Prepared by : Daniel Pone / JUD. / (916) 319-2334