Is Your Domestic Partnership Agreement Still Valid?
On June 30, 2014, under the Marriage Equality Act, ratified by voters in November 2012, many same-sex couples had their registered domestic partnerships automatically converted to marriage. The automatic conversion did not apply to couples where one partner was 62 or older.
Like changes to any law, it takes time to settle issues that arise as a result of the change. Take for instance the issue of a domestic partnership agreement. Suppose that you and your partner entered into a same sex domestic partnership agreement prior to registering with the state. You and your partner later married or had your partnership converted to marriage. Is your domestic partnership agreement still valid? If a recent California case is any indication, the answer is — possibly.
In 2006, Dr. Philip Timothy Wilson and Antipas Johnlang Konou executed a “Pre Registration Domestic Partnership Agreement.” Like a prenuptial agreement, the domestic partnership agreement included waivers of certain rights, claims or interest in future property, income, or the estate of the other. After executing the agreement, the couple registered as domestic partners under California law. Two years later, Wilson and Konou married. Shortly thereafter, Wilson died. When Wilson’s 1986 will was submitted to probate, Konou filed a petition, claiming an omitted spouse’s interest in the estate. The probate court rejected Konou’s claim and found that, while Konou constituted an omitted spouse, the signed partnership agreement remained valid after marriage. As a result, because Konou had waived his right to any interest in Wilson’s estate under the domestic partnership agreement, Konou could not claim an interest as a spouse.
In upholding the probate court’s decision, the California Court of Appeals stated the following: (1) like prenuptial agreements, domestic partnership agreements are enforceable; (2) Wilson and Konou entered into the agreement in 2006, a year after the state made domestic partnership essentially the same as marriage in terms of property rights; (3) under the domestic partnership agreement, Konou expressly waived his rights to any interest in Wilson’s estate; and (4) marriage did not automatically dissolve the domestic partnership or the domestic partnership agreement.
Although no Washington court has yet to address the issue of whether a domestic partnership agreement remains valid after a couple marries, the California case provides insight into possible factors a Washington court could address, although with a number of significant differences.
The first similarity is that like California, Washington recognizes the enforceability of domestic partnership agreements. This means that parties, as long as they meet certain requirements, may contract to distribute and characterize their assets as they want. In the case of Wilson and Konou, the signed partnership agreement contained a clause, stating that any subsequent changes in California or federal law that create or give rise to additional or altered rights and obligations of the parties shall not affect the agreement. Some Washington domestic partnership agreements contain similar clauses and, as in California, a Washington court may be inclined to uphold the agreement.
Second, like California, registered Washington domestic partners had essentially all the same rights and responsibility of married couples.
However, Washington differs from California, and the case of Wilson and Konou, in a number of significant ways.
First, unlike California law, where a party may be both married and in a domestic partnership, in Washington, a registered same-sex domestic partnership automatically dissolved upon marriage or June 30, 2014, whichever was earlier.
Second, under Washington law, for individuals who previously had a state registered domestic partnership, the date of the original state registered domestic partnership is the legal date of marriage. This means that the domestic partnership dissolves and a couple becomes married, in essence retroactive, potentially rendering a domestic partnership agreement void.
Third, Washington registered same-sex domestic couples received notice from the secretary of state that their domestic partnership status would change. Included in the notification was a statement that the individuals “rights and responsibilities of state registered domestic partnership will change.” Arguably, the language in the letter suggests that the State views marriages as legally different than domestic partnerships and changes certain, although unidentified, rights and responsibilities.
Although the California case has no direct impact on Washington law, it serves as a cautionary tale. As with all legally binding documents, when the law changes in a way that creates uncertainty as to the validity of all or part of an agreement, it is always a good idea to review the documents and seek legal advice.
If you executed a domestic partnership agreement and are now married, we recommend that you come in and review the agreement to ensure your desires are still binding.