Options for Same-Sex Couples in States That Do Not Recognize Gay Marriage

LegalMatch Law Library Managing Editor, Ken LaMance, Attorney at Law

Currently, only 5 states in the U.S. recognize same-sex marriage. They are Massachusetts, Vermont, Connecticut, Iowa, and New Hampshire.

 

Several other jurisdictions, including California, Nevada, Oregon, Washington, New Jersey, and Washington, D.C. recognize alternative unions which provide almost all of the legal rights and responsibilities associated with marriage. A few other states, such as Wisconsin, Maryland, and Hawaii, offer legal unions for same-sex couples which differ significantly from marriage, providing only a limited number of legal protections.

 

This leaves the vast majority of states with no formal recognition of same-sex unions, making it difficult for same-sex couples to avail themselves of the protections and conveniences that many opposite-sex couples take for granted.

 

For example, spouses can file joint tax returns, can make medical decisions for a spouse who is incapacitated, and have a legal right to visit an ailing spouse in the hospital. Furthermore, if one spouse dies without a will (a situation known as “intestacy”), the surviving spouse, under the typical intestacy scheme, will inherit all or part of the deceased spouse’s estate.

Same-sex couples in states that do not recognize same-sex marriage may not be able to obtain all of these protections, but with a bit of creative legal maneuvering, might be able gain some of them.

 

For example, if 2 people of the same-sex are in a committed, long-term relationship, and want to make medical decisions for one another, if incapacitated, a living will, or giving your partner durable power of attorney may help with this.

 

In a few cases, people have resorted to fairly extreme measures simply to obtain some of the legal protections associated with marriage. For example, there have been cases in which one partner in a same-sex relationship legally adopts the other. This creates a legal parent-child relationship. However, in many states, as long as both parties are consenting adults, sexual relations between parents and adoptive children are not illegal.

 

In theory, this arrangement could entitle the couple of many of the same rights that married couples enjoy, such as hospital visitation, inheritance rights, the right to make medical decisions, and others. Of course, state laws vary widely on the subject of adopting adults (and courts often frown on the adoption of an adult for the sole purpose of securing inheritance rights). This is a highly unusual course of action, and could have unintended consequences (for example, it would sever the adoptee’s legal relationship with his or her parents, preventing him or her from automatically inheriting if one or both of the parents dies without a will).

 

Although these options will not provide all of the legal rights of marriage, and may not be available in all states, they can be helpful, and provide committed same-sex couples with some peace of mind.

Given the complexity of some of these arrangements, and varying state laws, you should probably contact an attorney in your area to guide you and your partner through these processes.

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