FAQ: Same Sex Couples' Legal Rights

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Most Common Family Law Issues:

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

Same sex-marriages are formally recognized in 19 jurisdictions:  California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, 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 (including  New Jersey, Maryland, and Rhode Island) recognize same sex-marriages performed in other jurisdictions. 

A growing number of states, such as Utah and Wisconsin, have same-sex marriage laws that are still under review. Thus, the majority of states only recognize marriages between a man and a woman.

Defense of Marriage Act Deemed Unconstitutional

On the other hand, on June 6. 2013 the Supreme Court deemed the Defense of Marriage Act unconstitutional. This decision gave partners to a valid same-sex marriage access to federal protections and benefits, such as social security survivor benefits or retirement benefits. 

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?

The couple’s property rights will depend on whether or not their state recognizes their marriage or union.


States That Recognize Same-Sex Marriage: If the state recognizes same-sex marriages, the same sex couples’ legal rights are essentially 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 common law rules. 

States That Don’t Recognize Same-Sex Marriage: 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 acquire some property rights, they can do so by forming a formal property agreement.

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. Several states, such as Mississippi and Utah, 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?

Again, it 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 with the court, serving the other party notice, and attending hearings before a judge or mediator. 

In most cases, the grounds for dissolving or terminating domestic partnerships are the same as for divorce, and include:

However, there may be other requirements before a partnership can be legally terminated. 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 should consult with a family lawyer in your area. An attorney 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: 06-19-2014 12:09 PM PDT

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