In June 2015, the U.S Supreme Court declared that same-sex marriage is legal in every state reversing the court of appeals decisions. Previous to the U.S Supreme Court's decision, same-sex marriage was not recognized in every state and only 19 states recognized same-sex marriages within their state. Now that same-sex marriage is recognized in every state, same-sex couples can share the same benefits and protections that opposite couples had.
The only states that used to recognize same-sex marriage before the 2015 U.S Supreme Court ruling were were California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Washington D.C.
What Rights and Benefits Do Same-Sex Unions Offer?
Marriage confers many rights, including:
- Tax benefits – such as the ability to file a joint income statement.
- Employment benefits – an example includes the ability to collect on insurance from each other’s employer.
- Medical benefits – such as the ability to make medical decisions should one partner become incapacitated.
- Death benefits – such as automatic standing in probate court or the ability to make burial arraignments.
- Legal protections – including marital communications privilege.
It is worth noting this list is not exhaustive, and other legal and non-legal benefits may exist.
Gaining Rights Through Legal Means
It is not uncommon to hear of same-sex couples crossing state lines to get married. However, many states that offer gay marriages have a residency or other similar type of requirement, making the marriage unlikely, or potential for fraud high.
Moreover, there is no guarantee that the couple’s home state will recognize the marriage as valid. There is a copious amount of misinformation regarding application of the Full Faith and Credit Clause to gay marriages. However, put simply, the Full Faith and Credit Clause commands that valid judgments issued by a courts to be valid in any state court, but has never had much effect to marriages certificates or to legislation, largely because neither tend to involve judicial proceedings. Thus, it likely still will carry little weight in this arena.
Living Will – If two people of the same-sex are in a committed, long-term relationship, and want to make medical decisions for one another, they can draft a living will, or give their partner durable power of attorney.
Wills and Trusts – Although probate law grants the estate to a deceased’s surviving spouse, states which refuse to recognize gay marriage will not recognize your partner as your spouse. Thus, if a will is contested, the surviving partner may not be able to inherit anything, and may have trouble obtaining standing in probate court.
Adoption – In fairly extreme instance, one partner has legally adopted the other, simply to obtain some of the legal protections associated with a familial bond. In theory, this arrangement could entitle the couple of many of the same rights that married couples enjoy, such as:
- Hospital visitation
- Inheritance rights
- Right to make medical decisions
Of course, state laws vary widely on the subject of adopting adults, and it would not be surprising for courts to frown on the adoption of an adult for the sole purpose of securing inheritance rights. Moreover, the potential for severe and unintended tax, probate, and other consequences is high.
Do I Need an Attorney?
Each state varies as to their recognition of same sex couples and their respective rights. Therefore, if you are involved in a same sex relationship, it is wise to consult with a family law attorney when planning out a life together with your partner. Moreover, these marriage laws are constantly being challenged, with an increasing amount of success. Hiring the right lawyer may help you not only plan for the future, but obtain the one you and your partner want as a married couple.