by Alma Soongi Beck, Esq. for the San Francisco Spectrum

As the LGBT community celebrates the recent November 18^th Massachusetts Supreme Court decision which declares the Massachusetts ban on same sex marriage as a violation of the Massachusetts state constitution, now seems a good time for Californians to revisit and reflect on where we stand here in California on the issue of legal rights for same sex couples.

Rewind to almost exactly two months ago, September 19, 2003, when Governor Gray Davis signed AB205 into law. For most of us, the signing of AB205 was cause for celebration. Whether we attended the AB205 signing party that night at the San Francisco Lesbian, Gay, Bisexual and Transgender Community Center, watched the signing on the evening news, or read about the signing in the newspaper the next day, it did seem that California would be joining other states such as Vermont, temporarily in Hawaii, and now Massachusetts, and other countries such as Denmark, Belgium, the Netherlands, and now Canada, in heralding an exciting new age of expanded legal rights for California same sex couples.

Unfortunately, same sex marriage in Hawaii was short-lived. After the Hawaii Supreme Court ruled in 1993 that the ban on same sex marriage was a violation of the state constitution, the Hawaii legislature subsequently amended the state constitution to require that marriage be reserved for opposite sex couples only.

Although not called "marriage," AB205 bestows upon domestic partners who are registered with the California Secretary of State (not to be confused with domestic partners registered with local municipalities or employers) all of the same rights and obligations available to heterosexual married couples under California law, as of January 1, 2005. What could be simpler than that?

Or, is the question, really, what could be more complicated?

Socially and culturally, AB205 will dramatically change the way that we, as an LGBT community — a community known for its rebelliousness, radical activism, propensity to question authority, and suspicion of social conventions — will be invited to view our relationships. It creates an ironic, blessed dilemma for many of us. Do we want to be mimicking a heterosexual institution based on an inflexible binary gender system? Are we ready to let go of our attachment to the margins, in order to enter more deeply into the mainstream? AB205 forces us to choose in a way that we never before had the option.

Legally, AB205 also seems to raise as many questions as it resolves. If the law truly takes effect in January 2005, registered domestic partners will, just like heterosexual married people, become responsible for each other’s debts, subject to community property rules relating to our earned income and property, and required to terminate our domestic partnerships in a real "divorce" in the family courts. The law will also affect how registered domestic partners handle estate and tax planning, whether and in what manner to co-own or transfer property, and how and in what manner to have children and build families.

It would be premature in this article, at this point in time, to list and explain all the ways AB205 could potentially affect same sex couples. And to be frank, the LGBT legal community, including the law’s main organizational proponents such as Equality California, the National Center for Lesbian Rights and Lambda Legal, is still in the early stages of understanding and articulating the full legal implications of AB205. The LGBT legal community is also working actively to resolve some of the uncertainties in the law before it is expected to take effect in January 2005, such as where state law could clash with federal law (e.g, how would the federal government tax domestic partners governed by California community property rules, where there is no equivalent to domestic partnership under federal law?).

In the meantime, the temporary uncertainties are, understandably, cause for some anxiety among both lawyers and laypeople. While LGBT Californians seem mostly happy and excited about the increased access to rights that AB205 represents, practical questions remain during this interim period. Do we register or not? And in what other ways do I need to prepare before January 2005, when AB205 is scheduled to take effect?

A big question also remains about whether AB205 can even survive until then. With a movement to put a referendum on the March 2004 ballot that would, if successful, repeal AB205, and with two lawsuits pending that challenge the new law’s validity on the basis that it violates Proposition 22, the Knight Initiative, which was passed by California voters in 2002, the law could very well be repealed or struck down before its scheduled effective date of January 1, 2005.

So what is a responsible California same sex couple to do during this period of uncertainty about the new law? The following are some general ideas that people in same sex relationships should consider, in addition to consulting an attorney to discuss the law’s potential impact on their particular situation.

1. Wait and see. It is almost impossible to know quite yet whether the new law will survive the challenges before its effective date of January 1, 2005, and if so, what the full impact of the new law will be. The LGBT legal community will be implementing more and broader strategies for advising and educating the public over the next year. But in the meantime, the safest approach might be to wait and see how the events surrounding the potential referendum and the lawsuits challenging AB205 resolve themselves, and furthermore, if these events resolve favorably for our community, how the LGBT legal community then resolves some of the other unanswered questions about the full effect of AB205.
   
   
2. Be prepared either to un-register before January 2005, or to hire an attorney or attorneys to execute pre- or post-domestic partnership agreements. The current California domestic partnership law, which took effect in 2000 and was expanded in 2002, is still in full force and not under jeopardy of repeal at the current time. The current law gives registered California domestic partners over a dozen significant benefits, including the right to step-parent adoption, the right to sue for wrongful death and emotional distress, and the right of intestate succession (i.e. inheriting some or all of your domestic partner’s property if he or she dies without a will).
   
   Depending your situation, you may very well be one of those same sex couples with a compelling enough reason to register now as California domestic partners, despite the uncertainties of whether AB205 will take effect or not. Compelling reasons could include, for instance, if a higher than average possibility exists that one partner could pass away within the next year and you, as a couple, co-own a highly appreciated parcel of real property, or, as another example, if you as a couple have an immediate need to protect your parental rights through a step-parent adoption. If so, just be aware that, if AB205 takes effect, it might later benefit you, as a couple, to un-register, or even to un-register and then re-register, before January 2005, depending on your specific situation. Much will depend on how the legislature resolves some of the current uncertainties of AB205, mostly relating to the interactions between state and federal law. Moreover, not all couples currently registered will necessarily be ready to take on the added obligations under the new law… at least not right away.
   
   Couples may also, if the new law takes effect, want to revise any property agreements they drafted pre-AB205, in order to address the new community property scheme. New property agreements under AB205, if it does take effect, are likely, for instance, to require separate counsel by each partner in order to survive potential challenges.
   
   
3. Execute other documents that protect your relationship, with an estates and trusts attorney and also, for people with children, an attorney with expertise in family and adoption law. Domestic partnership registration, in its current or new form, is not a sufficient replacement for proper and updated estate planning to deal with property control and succession issues. Estate planning includes wills, living trusts, powers of attorney for finances, advance health care directives, and in some cases, more complex estate tax and business succession planning. Couples with children should also, even in this interim period, be sure to see a family lawyer to make sure they are clear about the relevant parentage and adoption rights with regard to each other’s children.
   
   Although the current law gives California domestic partners the right to inherit each other’s property if one should die without a will, having a will and/or a living trust is almost always preferable. Failure to execute proper estate planning documents can leave surviving domestic partners in the difficult position of having to endure the substantial expense, hassle and public nature of formal proceedings in the California probate court (the court that handles succession of property after a person dies), which could, in many cases, have easily been avoided by executing a simple living trust. Moreover, even for couples who do not own substantial property, the current domestic partnership law does not deal as thoroughly as is often needed on many of the issues relating to finances and health care, such as in the case of incapacity, or even in some of the most straightforward situations that arise at death, such as the power to deal with funeral arrangements or to authorize an autopsy for your deceased partner.
   
   
4. Advocate, give money and support all efforts to keep AB205 intact. Probably the most important step that same sex couples (and our allies) can take in this interim period, before the fate of AB205 is clear, is to support organizations that are fighting to keep AB205 intact. Those organizations include Equality California, the National Center of Lesbian Rights and Lambda Legal. In particular, if the anti-AB205 forces succeed in placing a referendum on the March 2004 ballot for repeal of the new law, we should all be acting to educate our communities and the general public of California about the importance of the new law and why it should be left intact.

AB205 is one of the most exciting pieces of legislation ever signed into law for Californians in same sex relationships. The legal and political importance of the new law should not be taken lightly, despite whatever personal reservations we might have about the increased responsibilities it would bring. We all have a role to stay updated on the current state of the law of domestic partnership, to ensure that AB205 is not repealed, and to be ready, with our partners and our allies, to deal responsibility with the issues that the new law raises for us in our relationships and in our families.

Ms. Beck is a San Francisco attorney practicing in the area of estates and trusts, domestic partnership and property co-ownership. She is a seminar facilitator for the National Center of Lesbian Rights on domestic partnership issues, and will be facilitating a series of seminars in early 2004. For more information, please visit www.beckesq.com.

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