Trusts and Estates

Ca. Trs. & Estates Quarterly Volume 10, Issue 1, Spring 2004


By Sondra J. Allphin*


More than 25,000 couples have registered with the State of California as domestic partners since the registry was created on January 1, 2000.1 Many practitioners may have created an estate plan for a registered person or couple. The changes scheduled to take effect on January 1, 2005 strongly encourage reexamination of those documents before the new law goes into effect.

A registered domestic partner dying after December 31, 2004 will have rights comparable to that of a spouse. If the decedent failed to execute testamentary documents after registration, the survivor will be treated as an omitted spouse. The survivor will be entitled to a statutory share of the decedent’s probate estate or trust estate, or both.2 Even if the decedent domestic partner did execute new testamentary instruments after registration, the survivor will be entitled to seek a family allowance and probate homestead, as is now available to a surviving spouse.3 Similarly, the survivor may be able to elect to take against the decedent’s will.4 These changes in the law should encourage planners to discuss the advisability of obtaining written "spousal" waivers of these rights. Alternately, drafters may wish to attempt to minimize the impact of the family allowance or probate homestead by drafting explicit language of intent to avoid their application. In any event, these issues will need to be discussed with clients so that the estate planning documents may carry out their intended purpose.

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