AgreementThe interplay of domestic partnership agreements and prenuptial agreements in California is a particularly usual situation.  In California same sex couples have the option of either becoming registered domestic partners or becoming married.  Under California Family Code § 297 gay and lesbian couples who are registered domestic partners are treated identically as married couple.  However, what happens if a LGBT couple wants to become both married and domestic partners?

In California some same sex couples have argued that the rules change.  In Estate of Wilson, (2012) 211 Cal. App. 4th 1284 (a case from San Francisco) one spouse argued that a domestic partnership agreement did not apply to her marriage.  In the case a lesbian couple became domestic partners and executed a domestic partnership agreement outlining who would get what in the event of separation or death.  The couple then subsequently got married but did not execute a prenuptial agreement.  One of the wives then argued that because a separate prenuptial agreement was not executed the domestic partnership agreement was no longer valid.  Her argument was that only prenuptial agreements apply to marriages and she did not execute a prenuptial agreement.  The court found that because gay and lesbian couples are treated equally under California Family Code § 297 a domestic partnership agreement also applies to the marriage.  The court thus upheld the domestic partnership agreement as applying to the same-sex couples’ marriage.

However, a more carefully worded agreement, such as one that simply stated “this agreement applies to both registered domestic partners and marriage” would have saved a lot of trouble and an extend court battle (which included an appeal).  The San Francisco based lawyers of Jones & Devoy have experience in family law, prenuptial agreements, domestic partnership agreements and the special problems that arise for gay, lesbian and bisexual couples.  Our office provides a free initial consultation to help you determine if you need a lawyer for your bay area case.