Since marriage equality became the law of the land in 2015, many LGBTQ+ couples in California have had to decide whether to marry, register as domestic partners, or remain unmarried. Each choice carries different legal consequences, particularly when it comes to estate planning, inheritance rights, and decision making authority.

At Kushner Legal Corporation, we work with LGBTQ+ couples throughout Los Angeles and Palm Springs who want clarity about how their relationship status affects their legal rights and what additional planning they may need to protect each other.

Community Property and Inheritance Rights

Both marriage and registered domestic partnership create community property rights in California. Under Family Code section 760, property acquired during the relationship is generally owned equally by both partners. This includes income, real estate, retirement accounts, and most other assets.

If you are married or in a registered domestic partnership and your spouse or partner dies without a will or trust, California’s intestacy laws under Probate Code sections 6400 through 6401 provide significant protections. You automatically inherit all community property and a substantial portion of separate property.

Unmarried couples have no automatic inheritance rights. If your partner dies without a will or trust and you are not married or registered as domestic partners, you inherit nothing. The property passes to blood relatives, and you are left with no legal claim.

The Federal Tax Difference

One of the most significant differences between marriage and domestic partnership is federal tax treatment. Married couples can file joint federal tax returns, take advantage of the unlimited marital deduction for estate and gift taxes, and benefit from portability of the estate tax exemption.

California registered domestic partners do not receive these federal benefits. For federal tax purposes, domestic partners must file as single individuals. This can result in higher tax liability and lost opportunities for tax planning.

Marriage also provides federal recognition that affects Social Security survivor benefits, immigration sponsorship, military benefits, and FMLA protections. Domestic partnership does not provide access to these federal programs.

Medical Decision Making

Married spouses and registered domestic partners have legal authority to make medical decisions for each other if one becomes incapacitated, even without an Advance Health Care Directive. Under Probate Code section 4716, spouses and domestic partners are at the top of the hierarchy of default decision makers.

However, an Advance Health Care Directive under Probate Code sections 4600 through 4806 removes any ambiguity and clearly designates your spouse or partner as your agent. For LGBTQ+ couples, this document can also specify preferences for gender affirming care, mental health treatment, and end of life wishes.

For unmarried couples, an Advance Health Care Directive is absolutely essential. Without it, your partner has no legal standing, and a court could appoint a family member you are estranged from.

Estate Planning Documents You Still Need

Even if you are married or in a registered domestic partnership, you should not rely solely on default legal protections. Comprehensive estate planning is still essential.

A complete estate plan typically includes:

• Advance Health Care Directive naming your spouse or partner as your agent
• HIPAA authorization ensuring access to medical information
• Durable Power of Attorney for Finances
• Revocable Living Trust avoiding probate and providing privacy
• 
Pour Over Will as a safety net
• Updated beneficiary designations on retirement accounts and life insurance

These documents provide clarity, avoid court involvement, and protect against interference from unsupportive family members who may not respect your relationship.

Protecting Against Family Conflict

LGBTQ+ couples are more likely to face conflict with family members who do not support their relationship. Under Probate Code section 6112, you can include a no contest clause in your will or trust that disinherits anyone who unsuccessfully challenges your plan.

You should also be explicit in your documents about who you do and do not want to inherit. Clearly stating your intentions reduces the risk of conflict and makes your wishes harder to dispute.

For Unmarried Couples

If you choose not to marry or register as domestic partners, comprehensive estate planning is even more critical. At a minimum, unmarried LGBTQ+ couples should have Advance Health Care Directives, Durable Powers of Attorney for Finances, wills or trusts explicitly naming each other as beneficiaries, and updated beneficiary designations on all accounts.

These documents create the legal protections that marriage provides automatically. They ensure your partner can act on your behalf, inherit your property, and carry out your wishes without interference.

Why LGBTQ+ Couples Should Plan Proactively

The decision to marry, register as domestic partners, or remain unmarried is deeply personal. California law respects your choice, but it also requires you to understand the legal consequences and plan accordingly.

At Kushner Legal Corporation, we work with LGBTQ+ couples to create estate plans that reflect their values, protect their partners, and ensure their wishes are honored. Estate planning is not just about legal paperwork. It is about protecting the person you love and ensuring your family is recognized and cared for under the law.

If you are ready to create or update your estate plan, or if you have questions about how marriage or domestic partnership affects your legal rights, we are here to help. You can learn more about our work with LGBTQ+ couples or schedule a consultation by visiting www.kushnerlegal.com.