California - To Register or Not To Register - That is the Question

I am often asked by couples in California whether they should register as domestic partners or not. It is a question I keep asking on behalf of my own partner and myself. The answer, unfortunately, is not clear. It depends.

Reaching back to the initial post, where I discuss that estate planning is about "respect" - it primarily depends on what is important to the couple considering it. And those considerations may have different results in each partner of the relationship.

The biggest motivators behind registering as domestic partners appear to be validation, legal protection, and access to benefits.

Some folks look to registering as domestic partners as a way to validate their relationship in the eyes of society. Sometimes registering as domestic partners can provide that validation. Sometimes it falls short. One of the big arguments behind the Marriage Cases recently heard by the Supreme Court (March 4, 2008) is that separate but equal is not the same as equal. (I think I've heard that argument somewhere before?).

Personally, I have long believed and agreed in the principle behind that argument, but think the more politically viable option is to abolish marriage as a legal institution - keep it as a religious ceremony, and make everyone from this point forward be civil domestic partners. Formerly married couples would be "grandfathered" into and be treated as civil domestic partners. This gives couples options regarding how they wish to create their union. It leaves the religious decisions to the religious leaders, and creates this little thing we theoretically aim for, "separation of church and state".

But I digress.

My point is that becoming registered domestic partners may or may not provide that sense of validity that a couple is expecting. For me, the answer was clear when I looked at how little a couple had to do to become registered domestic partners: add our names to a form, sign and notarize it. Sure, we had to live in the same place, and agree to take responsibility and care for each other. But there was nothing to the document that seemed to provide much room for enforcement - no identifying information to prove which individual actually signed the form - other than the notary's records. Even the request for date of birth is optional and only required if you choose to change your name. And there is no further instruction about how you would go about changing your name, so it would be easy for a couple to think all they have to do is write it on this form and they are done.

My partner and I almost made the leap this year on Valentine's day. We've been together over nine years; owned our home together for eight years; had a public ceremony five years ago. For us, the public ceremony provided all the validation we needed. But when I saw that form and how inadequate it appeared, it struck me how seriously this is taken - or not taken, as the case may be. I did not find validation from writing my name on a piece of paper and going to the corner store to sign in front of a notary and then going to the post office, and popping it in the mailbox (the "Forever" stamp would have been the only meaningful part of the process).

California has stealthily brought about an amazing set of laws designed to protect LGBT couples considering the national climate on the subject in this new century, and even in light of the passage of the Knight initiative by California voters in 1999 following the federal Defense of Marriage Act and claiming that California will not recognize a marriage other than between a man and a woman from another state. Registered domestic partners legally enjoy all of the rights and responsibilities that the State of California can provide to married couples. Everywhere in the California Code where the law references "spouse" it now refers to either married spouses or registered domestic partners. These rights and responsibilities include everything from second-parent adoption, intestacy, hospital visitation rights, ability to sue for wrongful death, to using the courts to dissolve the relationship.

Where this legal protection falls short are in areas beyond the State of California's control. A large example is those areas of law and programs administered or created by the federal government. It has been estimated by the GAO that there are over a thousand federal rights and responsibilities to which marital status is relevant. The legal protections also, unfortunately, fall short outside their own borders - i.e., outside of California, you have no such guaranteed protections and where the State cannot enforce its laws.

Many of the rights and responsibilities granted by California domestic partnership law can be achieved by private agreements, but there are some that cannot be obtained absent registered domestic partnership, or marriage. One of those - quite prominent in the news several years back - is the ability to sue for wrongful death. This was the case in San Francisco where a woman's partner was mauled by dogs belonging to a neighbor. Allowing domestic partners the right to sue for wrongful death was a reaction to this San Francisco tragedy.

Lastly, a strong motivator for registering is to access a partner's employment benefits. Some employers - particularly those who provided benefits for same sex partners prior to the ability to register with the State - do not require state registration to qualify for those benefits. My former employer did not, which is one of the reasons we did not register at an earlier time. Some may accept registration with a city - many progressive cities such as the City of West Hollywood and San Francisco led the way for domestic partner registry. I remember two friends of mine who registered with the City of West Hollywood. Much like you see for heterosexual couples who marry, they actually had to physically go down to City Hall to register, and go through a process, including witnessing their registration. Much different than the State's requirement to get a document signed and notarized and in the mail. (You can probably tell I'm still a little stunned and disappointed by that process, or lack thereof).

Those are the reasons a couple might want to register. My next post will discuss the reasons why a couple should not register as domestic partners.

Picking An Attorney

As a reminder, you are the client. It will be your dollars paying any attorney you hire. While an attorney will ask you some preliminary questions to determine if your matter fits within their scope of services, it is okay to ask they attorney you speak with questions to determine whether he or she will be sensitive to your issues.

It is a matter of personal preference of whether or not you want an attorney who is a part of the LGBT community. Politically - as a group - we work hard to be inclusive. Not discriminatory. There are very good attorneys who are sensitive to the issues involved in estate planning for LGBT individuals and couples, even though the issues may not apply directly to them. But sometimes, it is more comfortable to speak with someone who can personally understand the issues themselves. It is a matter of personal preference. You should be comfortable with your attorney. And, on the political spectrum, it doesn't hurt to support LGBT businesses!

Regardless of your attorney's sexual orientation, you should confirm that the attorney you choose has experience, or can speak knowledgeably about the issues particular to the LGBT community and has experience with estate planning.

Again, at the end of the day, you must be comfortable with the attorney and confident that he or she can effectively protect your interests.

DISCLAIMER!!! Please read!

This blog is not intended to dispense legal advice. It is merely a place to raise issues and solicit ideas and thoughts about what is important in the community in protecting individuals and couples.

It is intended to discuss general thoughts and ideas - and may not be state-specific. I advise strongly to discuss these issues with an attorney if you think any idea may be applicable or of value to you.

Introduction - Respect

Estate planning is an all encompassing term for many different types of arrangements one might make to make certain that one's wishes are respected.

For many LGBT individuals and couples, gaining respect for their wishes has even more significance.

Essentially "estate planning" is for anyone who doesn't want the "State" to decide how to determine their affairs - both during life and at death.

An estate plan can be simple or it can be complex. Even complex wishes may be handled by very simple means.

It often depends whether what you would want to have happen is what the State thinks you would want to happen. Some states have protections for gay and lesbian couples, and so some protections are already in place, such as providing for spousal visitation rights in the event of hospitalization.

But some of those protections only function if what you need protection from happens within THAT state. If you travel, State A's protections won't help you in State B. Sometimes, then, it is a good idea to still create instruments to provide protections that might already guaranteed by law so that if you aren't in that state, you still will have your wishes respected.

It's just like Aretha Franklin sang - R-E-S-P-E-C-T. That's what estate planning is all about.