Sunday, July 7, 2013

Registered Domestic Partners and Estate Planning


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.