GAY MARRIAGE WARNING

If you think that legalizing same sex marriage will result in the courts treating gays equally with male/females marriages, you are WRONG.

A California appellate court found that a domestic partnership is NOT the same as a marriage. BUT, they said, by statute, the property part of a domestic partnership IS the same as in a marriage. Therefore, a pre domestic partnership agreement signed in anticipation of a domestic partnership will be treated as if it were a pre marital agreement signed in anticipation of a marriage. Of course, this results in the gay spouse NOT getting his share of his husband's estate.

Are you surprised? I was. I was certain that the courts in San Francisco would not be biased against gays.

The appellate court also found that a certificate of marriage is a written instrument signed by the parties. The court agreed that the pre domestic partnership agreement could be amended or terminated by an instrument in writing. THEN, they held that the marriage certificate did not change the pre domestic partnership agreement, because the property parts of marriage are, by statute, the same as the property parts of a domestic partnership.

This is akin to saying that an addendum for a lease on 5 stories of a 10 story building will be automatically included in a new lease of all 10 stories of the building, because the property parts of the contract are treated the same in real estate law.

The court pretty much ignored the argument that marriage is a contract, which is intended to give the spouse all of the rights and privileges of marriage. A marriage contract can only be changed by a premarital agreement signed IN ANTICIPATION OF MARRIAGE.

Of course, a petition for rehearing has been filed. It has less than a 1% chance of being granted.

At least you are warned. Otherwise, married gays might think that a legal marriage required a premarital agreement and would not realized their old pre domestic partnership agreement was still in effect.

The man who brought me this case told me that he had NEVER seen the gay partner get ANYTHING from his partner's estate. I guess a valid gay marriage is not going to change that.

But, oh, how low The City of Harvey Milk has fallen! SIGH!