On reconsideration, the defendant argued that Labor Code Section 3501(b) should not apply as the two women were not married or registered with the State as "domestic partners." In short, defendant argued that the surviving domestic partner should not be considered a "surviving spouse" for purposes of Labor Code Section 3501(b).

The commissioners granted reconsideration. At the outset, the commissioners observed:

"As can be seen, the WCJ concluded that Ms. Jacobs was entitled to the conclusive presumption of total dependency contained in section 3501(b) because she was Ms. Gladden's "domestic partner" and under Family Code Section 297.5(a) and (c) a domestic partner is to be treated the same as a spouse... The problem with the WCJ's analysis is that Ms. Jacobs was not Ms. Gladden's registered domestic partner as required and defined by Family Code section 297, which provides in pertinent part that, "A domestic partnership shall be established in California when both persons file a Declaration of Domestic Partnership."... In short, the expansive protections provided in Family Code section 297.5 only apply to registered domestic partners, and in this case it is admitted that Ms. Jacobs and Ms. Gladden never registered as domestic partners pursuant to California Law."

The commissioners then examined whether, the absence of a registered domestic partnership, whether Ms. Jacob's should be deemed a spouse based on the existence of a "meretricious" relationship. Citing a number of cases, including Marvin v. Marvin (1976) 18 Cal. 3d 660, Dept. of Industrial Relations v. Workers' Comp. Appeals Bd. (Tessler) (1979) 94 Cal. App. 3d 72 (44 Cal. Comp. Cases 591) and State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Donovan) (1984) 49 Cal. Comp. Cases 577 (writ denied), the commissioners acknowledged that though the cases support the proposition that such couples should not be penalized for choosing these types of relationships, no case or court has extended to such persons the full measure of rights and responsibilities that apply to individuals who are lawfully married or registered as domestic partners.

The commissioners proceeded to quote from a 2008 Supreme Court case, In re Marriage Cases 43 Cal. 4th 757, which, in turn quoted from a 1988 Supreme Court case, Elden v. Sheldon 46 Cal.3d 267, which emphasized the significance of a formal marriage:

"Our emphasis on the state's interest in promoting the marriage relationship is not based on anachronistic notions of morality... The policy favoring marriage is 'rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of person in organized society.' Formally married couples are granted significant rights and bear important responsibilities toward one another which are not shared by those who cohabit without marriage... Plaintiff does not suggest a convincing reason why cohabiting unmarried couples, who do not bear such legal obligations toward one another, should be permitted to recover for injuries to the partners to the same extent as those who undertake these responsibilities."

Thus, the commissioners concluded, a non-registered, same sex, domestic partner, is not entitled to the conclusive presumptions contained in Labor Code Section 3501(b). The panel declined to address whether the outcome would have been different if Ms. Jacobs was in fact registered with the State.

This case obviously raises several issues. In the context of a heterosexual couple living together with the "good faith" belief they are married, but who, in fact, are not legally married, the surviving spouse has been afforded the conclusive presumption of total dependency. What if a same sex couple believed they had formally registered with the State but had in fact not properly filed that paperwork? Would a "good faith" belief by a same sex couple that they had registered as "domestic partners" be sufficient for purposes of Labor Code Section 3501(b)? What if the same sex couple was totally unaware that they could "register" or that that might make same legal difference to them?

Subsequent to the WCAB's finding that Ms. Jacobs is not a "surviving spouse" for purposes of Labor Code Section 3501(b), Ms. Jacobs has filed a writ for review with the First District Court of Appeal. Given the nature of the issues involved, it will be interesting to see if the DCA grants Ms. Jacobs' writ, and if it does, how it chooses to address the issues involved.

Reminder: Practitioners should check the subsequent history of a panel decision before citing to it.

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