On the heels of last weeks article about Prop 8 and
DOMA, and still in consideration of a question I received about Estate Planning
for committed individuals who do not want to marry, I thought it might be
worthwhile to discuss another impact area under California law, even though it does not directly connect to recently divorced people, the Registered
Domestic Partner.
California passed the Domestic Partners Rights and
Responsibilities Act of 2003, professionally referred to as, the DPRRA.
Under this act, effective January 1, 2005, two individuals had the right to file as
Registered Domestic Partners. As
such, a properly created RDP, shall have the same rights, protections and benefits
and shall be subject to the same responsibilities, obligations and duties under
the law, as if they were married persons. DPRRA defines RDPs as “two adults who have chosen to share one another’s
lives in an intimate and committed relationship of mutual caring”. DPRRA also stated that a “legal union
of two persons of the same sex that was validly formed in another state or
jurisdiction and that is substantially equivalent to a domestic partnership
would be recognized as a valid domestic partnership in California”
In order to file as a RDP under the DPRRA form
filings required the following:
- Neither person is married to
another or in a domestic partnership with someone else, which such other
marriage or domestic partnership is not terminated (no bigamy)
- The persons are not related
by blood so as to have an invalid marriage in California
- Both persons are at least 18
years of age
- Either both persons are of
the same sex or at least one person is over the age of 62
- Both persons are capable of
consenting to the RDP
While I am not a political guru, the intent seems to have been to allow all rights
and responsibilities of marriage to same sex persons, and due to other issues
of later life marriages, to allow for opposite sex seniors to enter into a
marriage like relationship. Both,
without technically being called “married”. The DPRRA might have been an attempted end run for same sex
marriage, as well as a possible work around for DOMA by blurring the lines
between “married persons” who have clearly established rights and benefits,
both State and Federal, and registered domestic partnerships which were
essentially marriage in all aspects but for the name. Some say, what’s in a name? That question seems to have been made moot in California by the recent Prop 8 and
DOMA rulings bu the U.S. Supreme Court. That said where are
we now?
With Prop 8 overturned, same sex marriage is
currently allowed in California.
If you are a same sex couple and have considered a formal committed
relationship, why bother with an RDP when you can get married? If you are a same sex couple that
entered into a RDP, can you and should you “get married” and if so, do you have
to terminate the RDP first? I
would suspect the answer is yes.
Does it matter? There is no
law on point, so we can only speculate, so seek counsel and be very careful if
you are considering these options. Really consult with your tax planner to get better financial guidance.
With DOMA overturned, it seems that all rights that
were trying to be allowed by the DPRRA should be allowed to a RDP without much
question. Furthermore, as a same
sex couple, either married under the various windows of opportunity in
California or other states, or electing to now get married post Prop 8, it
again seems that all rights were trying to be restricted by DOMA must be
allowed. I want to stress again,
that there is no law on point. I
am offering my speculation that this is a probably valid interpretation.
Finally, what of the DPRRA? I suppose it is still valid and viable
as a mechanism for commitment. I
cannot think of a reason for a same sex couple to elect an RDP over a
marriage, especially if tax laws, the IRS and the FTB fall in line. However, I see an
opening here for elderly opposite sex persons to enter into a legitimate and
committed formal relationship, while not being married, that would enable them
to enter into a consolidated Estate Plan.
In my blog called “Changes” on 6/19/13 - http://fbegun.blogspot.com/2013/06/changes.html,
responding to Dennis a few weeks ago, I did not discuss the option of them
seeking to enter into an RDP.
Provided Dennis and friend can qualify for an RDP, this could be a viable
alternative for them. Again, is
there any benefit of marriage over RDP?
One area of particular focus would be on taxes and a step up in basis,
which are critical issues for Estate Planning between spouses. I am not sure, other than to say that
with a marriage, there are no questions about any rights and responsibilities,
whereas with an RDP and even now relative to the DOMA and Prop 8 decisions,
there may be some Federal benefits or treatments subject to question.
There may still be some questions out there about
practical application and administrative or legal language semantics. There will likely be more litigation,
not only as to the legality and propriety of these current court actions, but
also as to the application of all of these other rights as to all of these
other relationship options. While
there have been huge steps toward equal treatment of individuals, there are
still those who question judicial majority decisions, legislative majority
intent and voter majority propositions.
However, as a student of the legal system and the Constitution, I
believe that the strain between these positions perfectly reflects the balance
of power anticipated by the Founding Fathers.
In the blogs that follow, I will get back on track
and discuss simple wills and the components necessary to make a complete and
valid will, followed by similar discussions on trusts. However, if you have any questions,
feel free to respond below, or if you are interested in learning more about an
Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce,
Custody, Visitation, Child Support, Spousal Support, Property Division,
Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at http://www.fcbegun.com/, fbegun@gmail.com or at http://www.linkedin.com for Fred Begun.
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