FAQ: Same Sex Couples' Legal Rights

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What Are Same-Sex Couples? Legal Rights with Regards to Marriage?

Same sex-marriages are formally recognized in 17 jurisdictions:  California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont, Washington, and Washington D.C.. This means that they can receive benefits at the state level as married couples. A few states (NJ, MD, and RI) recognize same sex-marriages performed in other jurisdictions. Finally, a handful of states have same-sex marriage laws that are still under debate. Thus, the majority of states (31 total) only recognize marriages between a man and a woman.

On the other hand, same-sex marriages are not legally recognized by Federal laws. This means that even if a same-sex couple is married under state law, they will not be entitled to federal protections or benefits, such as social security survivor benefits or retirement benefits extended to spouses. 

Finally, many states that don’t allow same-sex marriage will have some alternative way to recognize a same-sex union, such as a domestic partnership or civil union

What Property Rights Do Same-Sex Couples Have?

If the state recognizes same-sex marriages, the same sex couples’ legal rights are basically the same as other married couples. This means that they will be subject to the marital property laws of that state, whether they involve community property or other rules. 

In states that don’t recognize same-sex marriages or unions, the couple may not have the same property rights as a married couple. For example, if the couple splits, they may not be entitled to a ½ share in the property obtained during the relationship. If the couple wishes to state their property rights, they can do so by forming a formal property agreement discussing their rights. 

Can Same-Sex Couples Adopt Children?

Many states allow adoption by gay and lesbian parents. This makes both the partners the legal parent of the child. In states that allow it, the adoption may be performed either through an agency, or through the independent efforts of the couple. A few states prohibit same-sex couples from adopting children.

A common adoption alternative for same-sex couples is for the couple to donate sperm or an egg, and have the child born through a surrogate. Upon the child’s birth, the child may be adopted either through stepparent adoption or second parent adoption. 

How Are Same-Sex Partnerships Legally Terminated?

This again depends on the laws of the state.  If the same-sex partnership is a marriage or is very close in nature to a marriage, the termination procedure will be similar to divorce proceedings. This may be very complicated and can involve filing papers, serving the other party notice, and attending court hearings. 

In most cases, the grounds for dissolving or terminating domestic partnerships are the same as for divorce (such as adultery, abuse, imprisonment, etc.). However, there may be other requirements involved. For example, the relationship might need to have lasted longer than a certain period of time, and there are often residency requirements in the state. 

How Can a Lawyer Help With Same Sex Couples’ Legal Rights?

Same-sex couples’ legal rights will vary drastically from state to state. Some states do not allow same-sex marriages, while a few other states do allow them. In between, there are varying degrees of the extent of the couples’ legal rights. If you need any assistance or have any questions regarding same-sex couples, you may wish to hire a family lawyer in your area. Your lawyer can provide you with valuable advice, and can also represent you in court if you have a legal dispute. 

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Last Modified: 11-15-2013 12:11 PM PST

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