-
Generally, wills executed in compliance with California law will be recognized in other states. Registered domestic partnerships, however, do not carry the same portability.
California’s domestic partnership protections are state-level, and other states may not recognize them to the same extent, or at all.
Federal law does not treat domestic partnerships as marriages for benefit purposes, and that gap follows you across state lines. If you own property in multiple states or are considering a move, review your plan with your attorney to identify where gaps may exist and how to address them.
-
-
Your concern is understandable. Federal protections can shift, and rights established through case law can face future legal challenges.
The most durable protection available to you is a comprehensive, properly executed estate plan. Trusts, powers of attorney, and healthcare directives operate under contract and property law as well as constitutional protections, giving your wishes multiple layers of legal foundation.
Keeping your plan current and working with an experienced estate planning attorney puts you in the strongest possible position regardless of how the legal landscape evolves.
-
-
Yes, and this deserves particular attention for LGBTQ individuals. Because same-sex couples were unable to legally marry in most states before Obergefell v. Hodges in 2015, relationship endings often did not involve formal divorce proceedings.
Without that built-in occasion to revisit accounts, a former partner may still be named as beneficiary on retirement accounts, life insurance policies, or bank accounts.
Those designations pass assets outside of your will or trust entirely. Review them carefully, and update them whenever your circumstances change.
-
-
Challenges are possible in any estate, but LGBTQ individuals sometimes face heightened risk when estranged biological relatives disagree with the plan.
A well-drafted and properly executed trust is harder to contest than a will and does not pass through probate, which keeps its contents private.
Clear documentation of your intent provides the strongest protection against a successful challenge. Older documents, particularly those drafted before Obergefell, should be reviewed to ensure they still reflect your wishes under current law.
-
-
The core documents are the same as for any person: a will or revocable living trust, a durable power of attorney for finances, an advance healthcare directive, and a HIPAA authorization.
For LGBTQ individuals, the power of attorney and healthcare directive carry particular weight. Without them, a hospital or financial institution may defer to biological family members rather than your partner, especially if family relationships are strained or estranged.
A HIPAA authorization ensures your partner can access your medical information and participate in care decisions without obstruction.
-
-
No, and this distinction matters significantly for estate planning. California Probate Code Section 37 defines a domestic partner as someone who has filed a Declaration of Domestic Partnership with the Secretary of State under Family Code Section 297, and treats that person as a spouse for state law purposes.
Federal law, however, does not extend the same recognition to domestic partnerships. Spousal rollovers for inherited IRAs, Social Security survivor benefits, and the federal estate tax marital deduction are available only to legally married spouses.
Your plan needs to account for these gaps through careful beneficiary designations and other tools.
-
-
Only if you have registered your domestic partnership with the California Secretary of State. Under California Probate Code Section 6401, a registered domestic partner holds the same intestate succession rights as a surviving spouse.
Without registration, your partner has no automatic right to your estate, regardless of how long you have been together. California does not recognize common law marriage. Without a formal estate plan, an unregistered partner could receive nothing.
-
-
For married same-sex couples, federal and California law now provide the same rights as opposite-sex married couples.
Following Obergefell v. Hodges, 576 U.S. 644 (2015), married same-sex spouses have access to the federal unlimited marital deduction, meaning assets passed to a surviving spouse are exempt from federal estate tax.
That said, your plan still needs to reflect your specific family structure, your relationships with biological relatives, and how you want assets distributed. California’s default rules may not match your intentions, even if you are legally married.
-
Ready to get started?
Now is the time for action if you have been thinking about putting a plan in place or revising your existing one. You can send us a message to request a consultation at our Campbell, CA estate planning office or call us at 408-356-9200.
