Why Domestic Partnerships May Be a Good Backup Strategy for California’s Same-Sex Married Couples

By David Hakimfar

Since same-sex marriage became legal again in California following the Supreme Court’s June 2013 ruling, domestic partnerships may now seem quaint and even passé. But for many same-sex couples that are married (or plan to get married), there are some very good legal reasons why it may be prudent to have a domestic partnership in addition to a marriage license.

The Supreme Court actually considered two cases in the gay marriage debate. In Hollingsworth Vs. Perry, the court found that the supporters of Proposition 8 didn’t have the proper legal standing to bring the case before the court. In essence, the court didn’t actually rule on the merits of Proposition 8. Instead, their decision not to take up the case effectively left in place the Ninth Circuit Court’s repeal of Proposition 8.

In the second case, the Supreme Curt struck down Section 3 of DOMA (the Defense of Marriage Act). Justice Anthony Kennedy, speaking for the 5-4 majority, said DOMA was unconstitutional because it violated the right to liberty and to equal protection for gay couples. So for federal purposes, legally married same-sex couples are entitled to the same rights afforded any other married couple. These benefits include tax breaks, the ability to file joint federal tax returns, pension benefits and social security benefits among others.

Unfortunately, same-sex marriage isn’t legal in every state. Some states have civil unions or domestic partnerships. The majority of other states don’t have any legal recognition of same-sex relationships at all. To add to the confusion, some states will recognize a marriage, domestic partnership or civil union performed in other states. Others recognize one but not the others. And many states currently refuse to honor any of these.

You may be asking a logical question: “How do other state’s laws regarding same-sex marriage impact me and my partner in California? We’re married here, that’s all that matters, right?” Maybe, maybe not.

Let’s look at a couple of possible scenarios.

Let’s say you and your married partner travel to a state that doesn’t recognize same-sex marriage. What if one of you is injured in an accident or becomes ill and needs to be hospitalized? If you are in a state that doesn’t recognize your marriage, you may be barred from hospital visitation rights or the right to make medical decisions for your partner. However, if the state recognizes some sort of domestic partnership or civil union, being registered as domestic partners in your home state may grant you legal access to your loved one.

In the second scenario, what if you decide to move to another state in future? States that do not currently recognize any form of legal protection for gay and lesbian couples may enact civil unions or domestic partnerships as a stopgap measure instead of allowing same-sex marriages. The states that do recognize civil unions generally recognize those performed in other states. The same may be true for domestic partnerships. And as more and more cases are brought before the courts, differences in the laws from state to state make the need for additional legal protection and planning for same-sex couples a wise idea.

Finally, marriage just isn’t for everyone. Same-sex couples, that for one reason or another choose not to marry, still have the right to have their relationships recognized by the state by filing for a registered domestic partnership. Couples who have their partnerships registered with the Secretary of State possess almost all of the same rights and protections (and also have the same responsibilities) given to or imposed upon married spouses, with the exception of Federal benefits afforded only through marriage. If a couple decides to get married at a later date, the domestic partnership remains in force. If a couple later divorces, that domestic partnership is terminated as well.

The future of same-sex marriage is changing almost daily across the United States. While a growing number of states consider legislation on the matter, courts are being asked to make decisions on the legality of laws and state constitutional amendments barring same-sex couples from marriage and relationship equality. Until a federal mandate takes place in favor of same-sex marriage (most likely through a decision from the U.S. Supreme Court), gay and lesbian couples should explore all of their legal options to protect their interests.

David Hakimfar is a Trial Attorney and Senior Partner of Hakimfar Law, PLC, and a member-attorney of Pride Legal. He can be reached at 310-730-1250.