The Complications of Same-Sex Marriage in a Time of Changing Options

The following is a guest blog post by Frederick Hertz, an attorney and mediator based in Oakland, CA, and the author of the ABA treatise Counseling Unmarried Couples: A Guide to Effective Representation.

rings_159135126One of the worst forms of discrimination against same-sex couples is discrimination in the form of legal complexity. The twists and turns of same-sex partnership law over the past ten years—both in California and federally—have resulted in a morass of legal uncertainty, and the litigation flowing from these complications is just now beginning to hit the appellate courts.

The recently decided Estate of Wilson, A.J. Konou v Wilson (Dec. 13, 2012, A133952) is a great example of legal complexity in same-sex partnership law. In that case, Wilson and his partner, Konou, registered as domestic partners with the State of California in 2006, a few years after state-registration became “marriage equivalent.” Thus, for all state law purposes they were married, and all the rights and obligations of marriage in California applied to them.

Consistent with the applicable laws for all married couples, Wilson and Konou signed a pre-nuptial agreement before their registration. The agreement contained a waiver of any community property rights, as well as a waiver of any right to inherit or receive any asset on the death of either party, and it was reviewed by each party’s separate counsel.

Then, in 2008, same-sex couples were allowed to get married, and Wilson and Konou took the opportunity to legally marry. Sadly, Wilson died shortly thereafter. His most valuable asset was his sizable retirement account, which passed to his brother based on a will Wilson had signed before his registration with Konou.

Konou made a claim as Wilson’s pretermitted surviving spouse. Konou acknowledged the validity of the pre-registration agreement, but he asserted that the subsequent marriage was, in effect, an event (or agreement) that constituted a modification of the agreement. In other words, he argued that an otherwise valid pre-registration agreement was invalidated by a subsequent marriage to the same partner.

The trial court denied Konou’s claim, and the Court of Appeal affirmed the ruling. The justices concluded that a valid domestic partnership agreement is not invalidated by a subsequent marriage. Even though technically a marriage is in some ways legally distinct from a domestic partnership, they both extend the full range of marital rights and obligations on the partners, and thus the 2008 marriage did not materially change the obligations of the partners. The marriage added no new rights and did not terminate their domestic partnership, and so the pre-registration agreement’s waiver of inheritance and retirement account claims was binding on Konou.

The best metaphor for the court’s reasoning, as I have described in a variety of other settings, is that the parties were already “in the room of marriage” by having state-registered as domestic partners; getting married only meant they re-entered the “same” room by another door.

The ruling in this case isn’t surprising, and most everyone who knows the history of same-sex partnership law in California would agree with this decision. Perhaps what’s most valuable about the court’s decision is that it explains its reasoning with a comprehensive history of domestic partnership and same-sex marriage law in California.

Having clarity on this issue is enormously helpful, given that once the prohibition on same-sex marriage in California is—hopefully—lifted by the U.S. Supreme Court, there will likely be a rush of registered partners wishing to get married. Lawyers will surely be asked if new agreements are needed for previously-registered couples, and now they know what the correct answer should be.

For complete coverage of domestic partnerships in California and same-sex marriage in relation to domestic partnership, turn to CEB’s California Domestic Partnerships and Same-Sex Marriage. On premarital agreements, turn to CEB’s California Marital Settlement and Other Family Law Agreements. And check out CEB’s program Dissolutions of Same-Sex Marriages and Domestic Partnerships, available On Demand.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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  1. [...] The Complications of Same-Sex Marriage in a Time of Changing Options [...]

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