Since 2007, California gives certain legal rights to same sex partners and opposite sex seniors (where one partner is at least 62 years old) who are not married but are registered domestic partners. In some cases, these rights may be very similar to married couples.
In order to become a domestic partner, the following are the criteria:
1. Both individuals must live in a common residence.
2. Both persons agree to be responsible for each other’s living expenses.
3. Neither person can be married or a member of another domestic partnership.
4. Both persons must be over the age of 18.
5. Both persons must be of the same sex or if opposite sex, one partner must be over the age of 62.
6. The individuals must file a Declaration of Domestic Partnershiiip with the Secretary of State agreeing to submit to California jurisdiction should the couple decide to seek a dissolution or annulment.
Once individuals are registered domestic partners, California law gives them community property rights. All property acquired other than by inheritance or gift, and all assets obtained from earned income are equally owned. Upon death, a domestic partner may transfer only his or hers half of the community property through a will or a trust.
If a domestic partner dies without a will or a trust, the surviving partner has the same rights as a spouse and will inherit community and separate property according to the California laws of intestate succession. Also if a domestic partner is omitted from an estate plan of his or her partner, the omitted domestic partner has rights similar to an omitted spouse such as the right to file for a homestead.
Since registered domestic partners are not married, they do not qualify for the unlimited marital deduction for gift and estate taxes. There are however other estate planning mechanisms that can be utilized to reduce estate taxes.
If you are living in a committed relationship and are not married or registered domestic partners, you may want to at least prepare durable powers of attorney for finances and advance health care directives. The durable power of attorney for finances allows your partner to make financial decisions, pay your bills, etc if you become temporarily or permanently incapacitated. The advance health care directive together with a HIPAA authorization are documents which can name your partner to act for you in making health care decisions if you are unable to make them for yourself. The document can also give your partner authority to authorize an autopsy, donate organs, and handle burial or cremation.
We would be happy to meet with you to discuss your concerns and determine what estate planning documents best fit your needs. Contact us for a complimentary consultation.