of January 2005, state-registered domestic partners in California were
granted all the rights and obligations of marriage – under state law.
Then, in June of 2008, lesbian and gay couples were allowed to legally
marry in California – regardless of where they resided. The California
Supreme Court had issued a landmark decision, striking down the state
ban on same-sex marriage as unconstitutional, and refusing to postpone
the implementation of their decision. This was a powerful victory for
our community – but at the same time, it raised many complex legal
questions that every lesbian and gay couple had to consider.
Then, to our great dismay, California’s voters passed a constitutional
ballot initiative in November 2008, which re-instituted the ban on
same-sex marriage. Supporters of the right to marry immediately filed a
petition with the California Supreme Court, arguing that because the
Court had already ruled that we had a constitutional right to marry,
this initiative was itself invalid. California law already had
established that an initiative that would fundamentally change the
constitution can only be put on the ballot by the legislature, which
didn’t happen here.
Unfortunately, in May 2009 the California Supreme Court upheld
Proposition 8, and the marriage door was closed - until a subsequent
lawsuit was filed in federal court. Eventually, after five years of
litigation the United States Supreme Court ruled in June 2013 that the
proponents of Prop 8 lacked standing to challenge the federal trial
court's invalidation of Prop 8 as unconstitutional. Lesbian and gay
couples were allowed to get married once again in California, just a few
days later. On the same day the Supreme Court also ruled that the
federal Defense of Marriage Act (DOMA) was unconstitutional, and as a
result of this decision, all of the federal benefits of marriage extend
to couples who are legally married and living in recognition states. It
remains uncertain whether or not state-registered domestic partners in
California will be treated as spouses for federal purposes.
Because of the many legal and financial uncertainties surrounding
same-sex marriage, especially regarding the present lack of interstate
recognition, couples are strongly encouraged to consult with an attorney
prior to registering as domestic partners or marrying in California.
Some attorneys even recommend that couples that marry should also
state-register as domestic partners, so that they are protected by the
rights and obligations of marriage even if their marriage is not
Here is a summary of the most important issues couples should consider
in making their decision; for further information, check out the
websites of the National Center for Lesbian Rights (www.nclrights.org),
Lambda Legal Defense (www.lambdalegal.org),
or Nolo Press (www.Nolo.com).
If you have other questions, especially if you reside outside of
California, it makes sense to consult with a local attorney before
making any marriage decisions. A comprehensive review of these issues
can be found in my book, Making It Legal: A Guide to Same-Sex
Marriage, Domestic Partnerships & Civil Unions (Nolo Press, 2011).
What are the major implications of registering as domestic partners in
If you are residents of California, all state-imposed rights and
responsibilities of marriage will apply to you, effective as of the date
of your registration. If you are already state-registered as domestic
partners, your “date of marriage” is your date of registration, not any
later marriage date. These rights and responsibilities include joint
responsibility for many debts, sharing of income earned after your
registration or marriage, potential liability for spousal support, and
in most instances, processing a dissolution through the family law
courts. A summary of these rights and responsibilities is included at
the end of this page.
If you are not residents of California, or if you relocate out of
California, you may or may not be subject to the state rules of marriage
– that issue is unresolved in most states. Most of the New England
states and Iowa will honor your marriage, but the rules in the other
states are not yet resolved. And, if your relationship breaks up, you
may need to move to California for at least six months in order to file
a dissolution petition, unless you live in one of the marriage of
domestic partnership recognition states. Because it may be uncertain for
some time as to whether your marriage is or is not recognized in your
state, you should give serious consideration as to whether or not you
want to take on the risks of this uncertainty. While nothing is certain
at this time, most likely you will not receive any federal benefits as a
state-registered domestic partner, because technically you are not
What is the effect of the now-invalidated constitutional amendment to
ban gay marriage?
Now that Prop 8 has been declared unconstitutional, you are free to get
married in California, so long as you are otherwise eligible for
If you are already registered as domestic partners, can you get married
There is no prohibition against marrying in California - or anywhere
else - if you are state-registered domestic partners, as long as you are
marrying your present partner! Marrying your partner will not
significantly alter your legal rights and responsibilities – you are
already subject to the state laws of marriage, and the federal
government will recognize your marriage, even if they wouldn't recognize
your domestic partnership registration. But marrying now could create
confusion as to your “date of marriage,” and you probably should consult
with an attorney about that issue.
What does it mean to be married and have your marriage recognized by the
If you are married and live in a recognition state- which now includes
California - you will be treated as married for all purposes under
federal law. That means you must declare your filing status for tax
returns as married (though you can still file your returns separately),
you will be able to benefit from the immigration preferences for spouses
of citizens, and you will receive all of the Social Security and
retirement benefits extended to married couples. If one of you is a
federal employee your spouse will receive benefits that every straight
spouse receives. Keep in mind, however, that being married sometimes
comes with a cost - such as higher income taxes for some couples, or
disqualification from certain federal benefits based upon the income or
assets of your spouse.
What if we got married in Canada or anywhere in the United States? Is
our marriage now recognized in California?
Yes, it is treated just like any heterosexual marriage -- you have all
the rights and duties of marriage, including the duty to process a
dissolution through the court system if you break up.
What are the basic rules of being married or domestically partnered in
the California marital rules about assets and property apply to married
or registered couples, as of the date of their registration or marriage
(whichever happened earlier!).
a. All income and all savings accumulated from earned income are
presumed to be equally owned (community property), regardless of titling
of deed, asset, or account; a written agreement is generally required to
transmute property from community to separate (except for down payment
on a residence or other traceable contributions to the acquisition or
improvement of a joint asset or property)
b. Community property rule applies to savings accounts, stock options,
and all financial accounts, real property acquired, businesses, and
c. Pre-registration (or pre-marital) assets and gifts or inheritances
are presumed to be separately owned, with complex statutory rules for
allocating mixed assets/debts
d. Pre- and post-registration/marital debts likely to be joint debts,
regardless of debtor
e. Lesser-earning partner is eligible for post-separation spousal
support as determined by Family Law Court judge, based upon statutory
f. Fiduciary duty is imposed on partners/spouses, with potential
liability for mis-management or wrongful transfer of community property
require judicial process, except for registered couples with no
disputes, few assets, no real property, and no children
a. Statutory procedures for filing of dissolution petition, except for
summary termination of registered partners through Secretary of State
b. Family Court handles adjudication of property and debt disputes
c. Family Court handles adjudication of post-separation support claims
(both temporary and permanent support)
d. For couples with pre-registration/marital assets/debts held in
separate names: separate lawsuit possible under non-marital rules,
possibly consolidated with Family Law process
or marrying can raise many complex and new legal questions.
For couples registered before January 2005, the "date of marriage" is
the registration date -- not January 1, 2005, though there may be
challenges to retroactivity provisions.
Will any federal tax benefits and burdens apply? YES if you are married
-- but probably NO if you are state-registered as a domestic partner.
Will couples that registered with their partner out-of-state (i.e.
Vermont Civil Unions) be covered automatically if they reside in
California? YES — but not those who registered with local registries
Will partners registered with or married to someone else out-of-state
(i.e. Vermont Civil Unions) need to terminate that registration/marriage
before registering or marrying with another partner as DP in California?
YES — and they will be able to do so in California courts!
Will California's marital rules be applied to registered or married
couples that live out-of-state, or couples who live in California and
then relocate? Outcome is uncertain at this time - and it depends on the
law of the state you are living in.
Will a Canadian or out-of-state marriage be valid in California, either
for purposes of termination or awarding assets or spousal support? Yes!
Four Options for California Couples
1. Remain unregistered and unmarried, and organize all property and
debt issues by title and account name, without executing any formal
asset or property agreement
2. Remain unregistered and unmarried, but execute property co-ownership
and/or cohabitation agreement to address assets, debts, and
3. Register (or remain registered) or get married – or to be practical,
both -- and abide by all community property rules, generally without the
need for an agreement (though some couples may still need a written
agreement to address certain pre-registration/marital assets and debts,
or a transmutation agreement for specific assets)
4. Register (or remain registered) or get married, and execute
registration/marital agreement to modify the community property rules
regarding assets and debts, and to limit (to some degree) obligations
for post-separation support
Making the Decision
whether registration or marriage is vital for your relationship (i.e.
insurance or other private benefits, step-parent adoption procedures,
property tax implications, etc.) and confirm whether marriage will be
possible given the current legal uncertainties.
decide whether registration/marriage is possibly harmful to your
situation (i.e. disqualification from benefits, exposure to partner's
debt, privacy issues).
if registration and/or marriage is neither vital nor harmful, decide
whether you prefer registration and/or marriage (with or without private
agreements limiting the community rules) or non-registration/unmarried
(with private agreements providing for property and debt protections.
You now have the
freedom to choose your legal status -- cohabitants, domestic partners,
or married spouses. The consequences of your choice can be significant,
especially in the event of a dissolution or upon the death of either
partner. Learn the applicable rules, and make the best choice for your
particular circumstances. Remember that the right to marry is not the
duty to marry!