While the status of same-sex marriage in California remains pending before the United States Supreme Court, domestic partnerships remain a legal option for any two adults–regardless of gender–who wish to register their relationship with the state. California law affords registered domestic partners the same “rights, protections, and benefits” as spouses. And as one recent California case demonstrates, courts will look at domestic partnership agreements in much the same way as premarital or prenuptial agreements.
However, there is still some confusion about how different relationship status may affect legal issues, such as probate matters.
In December 2012 a California Court of Appeal panel in San Francisco rejected an appeal brought by Johnlang Konou against the Estate of Philip Timothy Wilson. Konou and the late Dr. Wilson had registered as domestic partners in California in 2006. In mid-2008 when same-sex marriage was legal in the state–before the passage of Proposition 8–Konou and Wilson married. Wilson committed suicide in November 2008, three days after Proposition 8 passed.
Under the couple’s 2006 domestic partnership agreement, which was drafted by attorneys for both men, Wilson and Konou each waived any claim or interest in the property of the other. This included a waiver of any transfer of property on death unless expressly provided for in the partner’s estate planning documents.
Changing Your Mind After the Fact
After Wilson’s suicide, his brother moved to probate his will, which had not been updated since 1986. Konou signed a waiver in early 2009 disclaiming any interest in Wilson’s estate, but he later reversed course and filed a petition seeking to invalidate that disclaimer and a determination of what rights, if any, he could claim as Wilson’s spouse.
The key question for the courts was whether the marriage invalidated the earlier domestic partnership agreement. If it did, Konou could claim a share of the estate as a pretermitted spouse–someone who married a deceased person after he made his will–under California law, his earlier waivers notwithstanding.
Both a trial court and the California appeals court ruled against Konou. They found the original domestic partnership agreement remained in effect throughout the subsequent marriage. A marriage license does not, in and of itself, terminate any pre-existing agreement between the parties regarding the disposition of property. The language of the Konou-Wilson agreement was quite explicit regarding this subject and could only be modified by a subsequent written document. There was no provision for ending or amending the agreement in the event same-sex marriage became legal in California.
A Warning for All Couples
Even if you find yourself in a “traditional” marriage that is not the subject of a Supreme Court case, Johnlang Konou’s situation is still a cautionary tale for anyone who enters into a domestic partnership or premarital agreement with their loved one. It’s essential to consult with a qualified California estate planning attorney, not just when such agreements are made, but when subsequent events may alter the parties’ wishes. It is also important to review your estate planning needs with an attorney on an ongoing basis. The late Dr. Wilson hadn’t updated his will for 20 years–indeed, he’d left half of his estate to a former partner. Whatever your current (or potential future) situation, feel free to contact the Law Office of Scott Soady if you want to discuss your estate planning needs.