Gay and Lesbian Family Issues

In California, the concept of family has broadened to include the LGBT family. The Registered Domestic Partners Act, passed in 2003, is designed to provide:

“All caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties and to further the States interests in promoting stable and lasting family relationships and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises.” (Stats. 203, ch. 421, § 1, subd. (a).)

The California Legislature went on to say, “many lesbian, gay, and bi-sexual Californians have formed lasting, committed, and caring relationships with persons of the same sex. These couples share lives together, participate in their communities together and may raise children in care for other dependant family members together... ” (Stats. 2003, ch. 421, § 1, subd. (b).)

Family code section 297.5(a) establishes that registered domestic partners have the same rights, protections, and benefits and are subject to the same responsibilities, obligations, and duties under the law, as are granted to and imposed upon spouses.

Issues Relating to Registration

The registration of a domestic partnership is done through the Secretary of State, of the State of California. Pursuant to Family Code Section 298, two parties may declare domestic partnership by establishing they meet the REQUIREMENTS:

1) Having a common residence

2) Either being currently married to someone else, or being a member of another domestic partnership (other than one that has been terminated, dissolved, or judged annulling)

3) Not being related by blood in a way that would prevent them from being married

4) Both being at least 18 years of age

5) Both being member of the same sex, or one or both being over the age 62 and meeting the eligibility criteria under Title II of the Social Security Act for old age Insurance benefits

6) Both are capable of consenting to domestic partnership and consent to the jurisdiction of the Superior Courts of California for the purpose of proceeding to obtain a judgment of dissolution or annulling of the domestic partnership or for legal separation of partners and/or any other proceedings relating to partners' rights or obligations even if one of the partners ceases to be a resident of the State of California.

The registration form may be obtained at California State website

Read more about the rights of registered domestic partners.

Children - Registered domestic partners may adopt the children of the other domestic partner with the same ability as heterosexual spouses pursuant to Family Code 297.5(a)(d).

Domestic Partnership Divorce - Under California Family Code Section 297.5 registered domestic partners have the same rights and obligations in the dissolution of a partnership that spouses in a traditional marriage do including but not limited to rights to community property, mutual responsibility for deaths to third parties, rights to seek financial support (alimony) from the other following the dissolution of the partnership, etc.

Individuals Not Registered As Domestic Partners - Need to contractually define rights and obligations.

Individuals who are partners, but have not registered their partnership, do not receive the same rights and benefits as registered domestic partners. As a result, a life partner, who is not registered, may not, unless there is a separate, signed, notarized, durable, health care power of attorney form, make medical decisions on behalf of their partner. Likewise, in the absence of a registered domestic partnership, a partner who dies without a will, will not be deemed to have left any of the estate to their life partner who is not registered as a domestic partner. Under the laws of intestate succession (transfer of property following statutory rules after the death of an individual without a valid will), property would revert to the nearest next of kin, or if there is an adopted child or a blood relative, completely excluding the un-registered life partner.

Power of Attorney for Non-Registered Domestic Partners - Partners who are not registered may provide for the legal right for their life partner, or another individual, to make health care decisions should they be incapacitated and unable to do so.

Under California Probate Code Section 4671 any adult who has a clear mental capacity may execute a Power of Attorney for health care authorizing another individual to make health care decisions. This document may include specific health care instructions that you wish to have carried out in the event of injury, coma, life support, etc.

A health care directive is considered to be legally sufficient under California Probate Code Section 4673 if it contains the effective date of its execution; it is signed by either the patient or in the patient's name by another adult in the patient's presence and at the patient's direction, in the advanced directive as either acknowledged before a notary public or signed by at least two witnesses who are adults, who witness the signature, who are not employed by the health care provider, who are not the person who ultimately will be making the decisions, or the operator of a residential care facility for the elderly. The witnesses must meet the REQUIREMENTS of California Probate Code Section 4674 including the declaration required there under. If the directive is executed in a skilled nursing facility, the advanced health care directive is not effective unless the patient advocate or ombudsman signs the advanced directive as a witness either as one of the two required witnesses in addition to the notarization.(See California Probate Code Section 4675).

If there is dissolution of a marriage or a domestic partnership, and the spouse, or domestic partner was the health care decision maker, the ability of that person to make health care decisions is automatically revoked under California Family Code Section 4697.

Association - It is unlawful to discriminate or harass an individual in either employment, housing or in the provision of goods and services because of an individual association with someone who is a member of the LGBT community. Therefore, the child of, spouse of, friend of, or business partner of a member of the LGBT community, who suffers discrimination or harassment based upon that association, has the same legal rights to bring an action as does the member of the LGBT community who is directly harassed or discriminated against.

If you have any questions at all about LGBT family rights, contact our gay-friendly office for help.