Burnham v. CalPERS: Because P was dead when his partner presented declaration of domestic partnership, she was not entitled to pension survivor benefits.
By Garrett C. Dailey, Certified Family Law Specialist
FACTS: James and Kathleen completed a notarized declaration of domestic partnership on Saturday morning. Later that afternoon, James died. On Monday, Kathleen presented the declaration to the office of James’s state pension survivor benefits. Admin. board of the state pension system ruled she was entitled to the benefit. Two of James’s children filed a petition for writ of administrative mandamus challenging the CalPERS board’s decision. Trial ct. granted the writ, finding Kathleen not entitled to benefits because they were not domestic partners at the time James died. Kathleen appealed and Court of Appeal affirmed.
HELD: Because P was deceased when his partner presented the declaration of domestic partnership for filing with the Secretary of State, they never became domestic partners and she was not entitled to his state pension survivor benefits.
“Consistent with the language of [Family Code section 297], we hold that presenting a declaration of domestic partnership or filing with the Secretary of State is a necessary prerequisite for a valid domestic partnership, and at the time of presentation, both individuals to the partnership must be capable of consenting.” (Burnham v. CalPERS, supra, 208 Cal.App.4th at p. 1579.)
Kathleen also argued she was a putative spouse. Court of Appeal noted she did not accumulate assets with James during a seemingly valid domestic partnership and then attempt to invoke the putative spouse doctrine to protect her loss of those assets—assets that would have been c/p if the marriage was valid. Rather, as trial ct. noted, she was attempting to use the doctrine “to look forward” to obtain rights upon James’s death without any “detrimen[al] . . . reliance.”
“These facts distinguish this case from the putative spouse scenario, where the parties enter into what one or both believe is a valid union and then accumulate property only to learn the union was void or voidable.” (Burnham v. CalPERS, supra, 208 Cal.App.4th at p. 1587.)
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Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.
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