Same sex marriage refers to a legally recognized marriage between two spouses of the same gender. In states that recognize same sex marriage, same sex spouses have the same rights and benefits as legally marriage opposite sex couples. These rights include:

  • Tax relief
  • Medical emergency decision consent
  • Spousal benefits
  • Inheritance rights
  • Marital privilege rights in court

What States Allow Same Sex Marriage?

In June 2015, U.S Supreme Court reversed the Court of Appeals ruling and declared that same-sex marriage is legal in every U.S state. This means that every state would allow same-sex couples to legally marry within their state and be able to have the same

Same-sex marriage was previously only recognized in only 30 states and Washington D.C.: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, and Washington.

What Is the Federal Defense of Marriage Act?

The Federal Defense of Marriage Act ("DOMA") was found unconstitutional and struck down in 2013. Once deemed unconstitutional, married same sex couples were permitted to have the same federal benefits and protections that heterosexual couples have.

DOMA was a federal law that allowed states to refuse to recognize same sex marriage granted under the laws of other states. As a result, couples legally married in California, for example, could not move to Kansas, for example, and be afforded the same rights they had in California as a married couple.

Despite this ruling, the court did not invalidate individual states from banning same sex marriage until 2015 when the Supreme Court ruled that same-sex marriage is legal in every state.

What Rights Do You Acquire from Marriage?

The rights you acquire from marriage can be classified by eight different categories:

1. Property Rights. In states that recognize same-sex marriage, same-sex couples have the same legal rights as opposite-sex married couples. If a state does not recognize same sex marriages, upon termination of the relationship, neither spouse is entitled to the same property rights and protections afforded to opposite sex married couples. Therefore, in order to maintain or acquire property rights, the same sex couple must create a formal property agreement.

2. Children. When it comes to adoption, many states permit adoption of children by same sex couples. Both parents are the legal parent of the child. States such a Mississippi and Utah prohibit same sex couples from adopting children. A common alternative to adoption that many same sex couples are embracing today is for the couple to donate a sperm or egg and have the child born through a surrogate.

3. Termination of Same-Sex Partnerships. Termination of a same sex relationship varies depending on the laws of the state. If the same sex partnership is a marriage, the termination will be like a typical divorce proceeding. In states that require grounds for divorce, the grounds for dissolving or terminating domestic partnerships are the same as for divorce including adultery, abuse, imprisonment, and irreconcilable differences.

4. Estate Planning. In states where same sex marriage is not recognized, in the absence of a valid will, the estate of a lesbian or gay man will be split amongst his surviving biological family and not to her or his surviving spouse. This would occur regardless of the state of the relationship the deceased had with his or her family.

5. Power of Attorney. Power of attorney permits a same sex spouse to enter into contracts, negotiate, and settle matters as if they were the other spouse. This includes asset management and financial affairs when the spouse becomes incapacitated and is unable to handle their affairs.

6. Medical Power of Attorney. Medical power of attorney authorizes the same sex spouse to make healthcare decisions on behalf of a incapacitated spouse. These include determining whether or not to continue life support measures. Additionally, this right includes that to determine what to do with the body of the spouse in the event of death i.e. cremation or burial.

7. Insurance Coverage. In states that recognize same sex couples, life insurance, auto insurance, and insurance granted by employers and other benefits may be extended to same sex spouses.

8. Parentage. Women with same sex partners may have their partners name on the birth certificate. However, male partners using a surrogate must go through additional legal work to obtain legal parental rights.

What Are Some Traditional Marriage Alternatives?

In states where same sex marriage is not recognized, traditional marriage alternatives are available. These include:

  • Cohabitation. Cohabitation is simply what it means - a couple living together in the same residence. No laws or protections are usually attached to cohabitating couples, however, they can form contractual rights and protections by creating a cohabitation agreement. These agreements can outline rights and protections, including property rights, as agreed upon by the two parties.
  • Common Law Marriage. Common law marriage is not recognized in all states. However, in states where it does, common law marriage is where the state recognizes the couple as a married couple, even if no formal wedding or state marriage license was obtained. If the common law marriage is recognized, the couple is afforded almost all of the same rights as a legally married couple. However, in states that don’t recognize same sex marriage, it is unlikely that they will recognize a same sex common law marriage.
  • Civil Union. A civil union occurs when a couple is granted the legal status as a married couple. The same sex couple files with the state for a civil union and receives the same benefits as a married couple.
  • Domestic Partnerships. Domestic partnerships create a legal relationship for the couple that is similar to marriage in many states. In many states domestic partnerships mean that the couple will be treated the same as a married couple. In others, domestic partnerships are no more than a cohabitation agreement with couples receiving fewer rights than married couples.

Should I Consult an Attorney?

If you are confused about the same sex marriage laws in your state, a family lawyer can help you determine what rights and protections you have and an attorney can help you determine what rights you have and alternatives you may undertake.