California probate gives equal treatment to registered domestic partners

California law grants registered domestic partners the same rights as surviving spouses.

When one or both members of a couple enter into their second, or later marriage, sometimes one spouse has a will or trust already in place.  It is not uncommon for the spouse with the will or trust to forget to change it. In some cases, the spouses just ignore the fact they are in a new marriage and their existing will or trust doesn’t even mention their new spouse.

California has a law called “the omitted spouse statute.”

This law permits a spouse who has been left out of their spouse’s will or trust to petition the probate court for relief. The surviving spouse can have their attorney file a petition telling the probate court judge their spouse had a will or trust, but the will or trust does provide for them.  Assuming the deceased spouse didn’t make other provisions for the surviving spouse, the spouse is entitled to a share as an omitted spouse. This can include leaving the spouse proceeds of a life insurance policy, pension plan, IRA, or other assets.  That share is determined by the nature of the property that their deceased spouse left behind.  Everything that was community property gets divided evenly.  In other words, half of the community property will go to the omitted spouse.  Separate property is treated differently. The proportion of separate property that will go to the surviving spouse will depend upon whether the deceased spouse left behind any children and whether or not those children have otherwise been provided for.  Under no circumstances will the surviving spouse receive more than half of their deceased spouses separate property.

The omitted spouse situation arises even more frequently for registered domestic partners in California.

California’s registered domestic partner law applies only to same-sex couples and couples who are over 62 years old.  In a nutshell, it requires registered domestic partners to be treated the same as married couples under nearly every aspect of California law, including inheritance rights.  That inheritance can come from a trust, will or intestate probate.  The law was passed in 2003 and is not particularly well understood by the people it most affects.  For that reason, it appears registered domestic partners more often than married couples tend to forget to create a will or trust that provide for their registered domestic partner.

Registered domestic partners are covered by the omitted heir statute.

So, if a deceased registered domestic partner had created a will or trust which does not provide for their surviving registered domestic partner then the surviving registered domestic partner can have a probate attorney file a petition with the probate court stating that their deceased domestic partner had created their will or trust and they are not provided for under the will or the trust. If the surviving registered domestic partners able to prove these things then they are entitled to a share of their deceased partner’s estate just the same as a surviving spouse in the same situation.

For example let’s suppose Betty and Veronica, a lesbian couple for 30 years, became registered domestic partners.

Betty has a child from a previous relationship and she created her trust over a decade ago and that trust leaves everything to her child. After Veronica and Betty became registered domestic partners, Betty never changed her trust.  Betty dies.  Veronica, her domestic partner, is entitled to a share of Betty’s estate.  Veronica won’t get it automatically.  She has to have her probate attorney file a petition in probate court seeking her Veronica’s share of Betty’s estate.  Based on these facts, the court should award Veronica her share.