Same Sex Marriage Domestic Partnerships

Respectful Guidance For Same-Sex Couples

For same-sex couples, California is indeed the “Golden State.” However, legal responsibilities and challenges also come along with the historic rights that lesbian and gay couples have won in recent years.

Modena & Royce located in South San Francisco, can help you understand the new laws as they apply to your particular situation.


On June 26, 2013, the U.S. Supreme Court ruled that married same-sex couples were entitled to the same federal benefits as heterosexual couples in states that allow same-sex marriage. In addition, they held that the opponents of Proposition 8 lacked standing, thereby allowing same-sex marriage in California.

In United States v. Windsor, Justice Kennedy was adamant that this was a landmark civil rights decision in that the federal statute (DOMA) “was invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity” and “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

In the Proposition 8 case, Hollingsworth v. Perry, the justices held that the opponents lacked standing – effectively declaring that gay and lesbian couples could marry in California.

These cases show how much public opinion, and the opinion of the justices at the U.S. Supreme Court, have changed since Lawrence v. Texas, the U.S. Supreme Court case that decriminalized gay sex a mere decade or so ago.

But the fight must continue as questions still remain:

  • What happens to couples that legally marry then move to a state that does not recognize their marital rights?
  • Can they file joint tax returns?
  • If they decide to divorce, where and how is that accomplished?
  • What happens if one of them dies while they reside in a state that does not recognize their marriage?

The issue of same-sex marriage was finally decided by the U.S. Supreme Court on June 26, 2015. In Obergefell v. Hodges, the Supreme Court held that the right to marry is a fundamental right inherent in the liberty of the person and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same sex may not be deprived of that right and that liberty. While some states have started challenges, i.e., Kentucky Clerk Kim Davies’ opposition on religious grounds, most states are expected to follow the law of the land. Same-sex marriage is a reality in the United States!


Now that same-sex marriage is legal in California, we see fewer couples choosing to establish domestic partnerships. However, those who do choose to do so – and those who are already in such a relationship – should be aware of their legal rights and responsibilities. Many unique tax issues are also associated with domestic partnerships.

If you and your partner decide to register, you will obtain certain rights formerly reserved for married couples such as:

  • The right to use stepparent adoption procedures
  • Healthcare and medical emergency rights
  • Protections upon the death of a partner
  • Access to life and car insurance
  • Employment benefits (including health insurance)

Registration also comes with responsibilities. It is critical that you understand these, and consider legal counsel to guide you through the process. These include:

  • Liability for each other’s debts, including medical expenses
  • Equal ownership of community assets encompassing purchases made during the term of the registered partnership
  • The duty to provide “spousal support” should the relationship end
  • The fact that the partners’ individual incomes are considered community property
  • The relationship of registered domestic partners may only be terminated in family court.


Modena & Royce have assisted numerous clients with the dissolution of nonmarital relationships and relationships that were established many years before the marriage.

For instance, a same-sex couple may have lived together for 10 years in a relationship that was not legally recognized. After that time, they chose to marry or become registered domestic partners. Five years later, they are ready to part ways.

The length of the relationship and the rights that arose during the period before the relationship was legally recognized mean that dissolving it comes with unique legal considerations. Modena & Royce has the skill necessary to address these particular concerns.

Opposite-sex couples may also find themselves in this situation and they will require legal assistance in order to establish or defend against “palimony” or other constructive trust interests in real property, businesses, and/or retirement interests.