Tuesday, October 15, 2013


Back in the dark ages (last spring), many gay and lesbian couples in California entered into domestic partnership agreements as a way to confirm their promises to each other because they did not have the right to marry.  A marriage is basically a three way agreement between the government and the couple that includes all sorts of statutory rights and obligations the starry-eyed lovers may or may not be aware of.  A domestic partnership agreement, however, is similar to a pre-marital agreement in that it is completely individualized to the particular couple involved.  (My post on pre-marital agreements is called “Do I need a pre-marital agreement if I love my fiancé?)

Unless you’ve been living under a rock for the last year, I am sure you are aware that the Supreme Court finally decided to allow love to conquer all and former California domestic partners are now becoming spouses faster than you can say, “honey, have you seen my keys?”

But what about that old contract?  Is it still valid?  It is  trumped by the new marriage or will it be treated as a sort of pre-marital agreement and stick?  

Well, the California Supreme Court has yet to decide on this issue, but the First District Court of Appeal (covering Alameda, Contra Costa, Fresno, Marin, Monterey, San Benito, San Francisco, San Mateo, Santa Clara, and Santa Cruz counties) recently decided to treat a domestic partnership agreement as a pre-marital agreement.  In Estate of Wilson, the couple had signed an agreement that waived their right to inherit from each other’s estate in the absence of a will or trust providing for the inheritance.  Later, they got married and probably forgot all about it until one of them died leaving an old will that divided his estate between a former boyfriend and siblings.  Normally, when you forget to update your will after you get married the new spouse can claim a share of the estate as a pretermitted spouse,” but in this case the Court said that the domestic partnership agreement acted as an enforceable prior waiver of the right to inherit, just as it would be in a pre-marital agreement.  

Contrary to how I’ve explained marriage in several of my Ask Roxy posts, the First District Court of Appeal explained that marriage is actually not a contract, which have the power to terminate earlier contracts, because the license and marriage certificate do not themselves confer rights and obligations, rather they change the status of the person and that new status is subject to certain statutory rights and obligations.  This is why, the Court stated, pre-marital agreements survive marriage.  It’s a fine and delicate little distinction, and I’ll probably go on describing marriage generally as a contract because it is such a clear and understandable visual for lay people to understand what they are getting themselves into, but the devil is in the details and this devil just ate someone’s inheritance.     

Now, the court basically acknowledged that not every domestic partnership agreement will be treated as a pre-marital agreement, but yours might.

So, just when you thought you were finally “just plain married” like every one else, there is a new snafu to make homosexual relationships more interesting.  (Ever heard of the old curse, “May your life be very interesting.”?)  Did up that old agreement,  hi, ho, hi ho, it’s off your lawyer you go.

For more on the difference between California domestic partners and spouses read this post: “Is a Registered Domestic Partner the same as a Spouse?"


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