On June 26, 2015, the Supreme Court of the United States ruled in Obergefell v. Hodges that denying the fundamental institution of marriage to same-sex couples violated the Fourteenth Amendment of the U.S. Constitution. The Fourteenth Amendment says that states must provide equal protection of the laws for all of their citizens. It also guarantees that no person should be deprived of life, liberty, or property without due process of law.

When the Obergefell decision was issued, it had important effects on many areas of family law. Prior to the decision, some states offered same-sex marriage and other states offered creative alternatives to marriage such as civil union or domestic partnership. However, these rights were not uniform across the states, and some states would not recognize marriages and partnerships formed in other states. Now that same-sex marriage is legal, many of these rights are now granted in all states.

Important rights that are now granted to same-sex married couples include:

  • Property Rights: Same-sex couples who marry now have the same rights as heterosexual couples with regard to property. These rights generally include protections for spouses in the event of divorce or death. Same-sex couples who marry can now hold property together and enjoy many other marriage-related property benefits, such as marital estate planning.  
  • Employee Benefits: Same-sex couples can now be included on the medical plans of their spouses where one spouse has insurance coverage as a job benefit. Same-sex spouses can also now benefit from retirement savings plans such as 401(k)s.
  • Tax Benefits: Same-sex couples now benefit from both state and federal tax rules that apply to during marriage. For example, they can now file income tax returns jointly. Surviving spouses are also able to avoid both state and federal estate taxes.
  • Family Leave, Medical Leave and Hospital Visitations: Laws under the Family Medical Leave Act (FMLA) regarding leave from employment for caring for a sick spouse now apply to same-sex married couples. Maternity and paternity leave provisions also apply to these couples. Finally, same-sex married people now unquestionably have the right to visit their spouses in the hospital.
  • Divorce: One negative result of the patchwork of same-sex marriage laws that used to exist was that some same-sex couples married, but then could not pursue divorce in their state of residence. Now, divorce laws in each state apply equally to same-sex and opposite sex couples.

Are There Any Rights That Are Still Unavailable to Same Sex Couples?

While the legalization of same-sex marriage and laws that have been passed in various states have granted many rights and protections to same-sex couples that did not exist prior to the past two decades, there are still a number of rights and protections enjoyed by heterosexual married couples that are currently not granted to homosexual married couples.

Adoption and Child Custody

While there is some progress due to recent court decisions, there is still some lack of legal protection for same-sex parents raising children. For example, in many states, there is no presumption of parentage for same-sex married couples because a parentage presumption is based on an implicit assumption that both a man and woman are biological parents of any children conceived during their marriage. In Mississippi, joint adoption by same-sex couples is still banned. In other states, state-licensed faith-based adoption agencies can legally discriminate based on sexual orientation.


There are also concerns that same-sex couples may still face other civil rights issues, such as employment or housing discrimination. For example, in many states it is still legal to fire someone based on their sexual orientation. There are also several states that have specifically allowed faith-based organizations to discriminate in provision of services. The law in Kansas is currently broad enough that a faith-based homeless shelter was allowed to turn away same-sex married couples.

Can a Lawyer Help with Same Sex Couples’ Legal Rights?

Same-sex couples’ legal rights have recently undergone a drastic change. If you need any assistance or have any questions regarding same-sex marriage or other rights, 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.