Recognition of Same-Sex Marriage

On June 26, 2015 the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have a constitutional right to marry in all 50 U.S. states. This ended a complicated situation in which some states had legalized same-sex marriage or other alternatives, such as civil union or domestic partnership, while others did not recognize these relationships, disallowing same-sex couples any of the legal benefits associated with marriage.

Recognition of same-sex marriage in the United States has meant that there is no legal difference between a marriage of same-sex partners and other-sex partners in any state. It has also meant that the same rules and rights related to marriage apply to all couples, including those having to do with property rights, estate planning, and divorce.

One of the benefits of the availability of same-sex marriage in all states of the United States is the fact that a same-sex couple can marry in one state and get divorced easily in another if they should move.

What Rights Come with Same-Sex Marriage?

The exact same set of legal rights, protections, and benefits accrue to partners in a same-sex marriage as those enjoyed by partners in an other-sex marriage. Some examples of this are as follows:

• Property Rights: One spouse in a marriage is entitled to an equitable share of their spouse’s property acquired during the marriage. This is dependent on the laws of the state where the couple reside, and it applies to other-sex marriages as well. Estate planning rights are included in property rights. Usually, property acquired through inheritance is the sole property of the inheriting spouse and it cannot be distributed in whole or part to the other in the event of divorce;
• Inheritance Benefit: One spouse can inherit the estate of the other without inheritance tax consequences;
• Tax Benefits: Tax benefits include access in some circumstances to a larger standard deduction when the couple files as married, filing jointly as opposed to filing separately. However, being married is not always advantageous at tax time;
• Gifts: One spouse can make gifts of money and property to the other without tax consequences.
• Power of Attorney and Medical Power of Attorney: This includes the right to make emergency medical decisions on your spouse’s behalf should they become incapicated. This also includes the right to enter into contracts, negotiate, and settle matters as if you were your spouse.
• Insurance Coverage: Life insurance, auto insurance, insurance provided by employers, and other benefits may be extended to a spouse. Usually, one spouse can be covered by the health insurance that the other receives as a benefit of employment. This is especially helpful if one spouse is not employed or their employer does not offer health insurance. In some cases, one spouse simply has access to better coverage at a lower price than the other so they can choose which employer offers the best deal;
• Divorce and Parenting Rights: Most states recognize the right of same-sex marriage partners to adopt children. Additionally, if a child is born to one parent during the marriage, the other parent may have legal parenting rights with respect to the child. This would include the right to participate in making decisions about the care and education of the child and a right to custody, sole or joint custody, or visitation in the event the same-sex couple gets divorced;
• Other Rights in Divorce: Same-sex marriages are also entitled to the same divorce rights and process as other-sex couples, should the marriage need to be dissolved. For example, of one spouse has been dependent or has sacrificed the development of their career for the other spouse, they may seek spousal support in the event of a divorce;
• Social Security: If either spouse does not qualify for Social Security benefits, the spouse who does not qualify can receive the other spouse’s benefits. A spouse can also potentially receive Medicare, Social Security disability benefits, and veteran’s, military and pension plan benefits through a spouse;
• IRA Benefits: One spouse can roll over the IRA of a deceased spouse without immediate tax consequences. The spouse who inherits a spouse’s IRA can even continue to make contributions to the combined IRA. One spouse can contribute to a spousal IRA. This allows an employed spouse to contribute to an IRA retirement account for a spouse who is not employed outside the home. They must file a joint tax return in order to do this;
• Spousal Testimonial Privilege: Should one spouse be called to testify against the other spouse in court, they may be able to invoke marital privilege in order to avoid testifying without being held in contempt of court.
• Debt: In community property states, both spouses are responsible for the debts incurred by one spouse during the marriage, even if only one spouse signed the paperwork for the debt. Debts incurred before or after the marriage would not be community debt. In other states, the debts incurred by one spouse are usually that spouse’s debts alone, unless the debt was incurred for a necessity for the family, such as food, shelter, or tuition for the education of the children of the marriage. Of course, details depend on the law of each state.

International Recognition of Same-Sex Marriage

Some other countries have also fully recognized same-sex marriage. However, this recognition does not always extend to territories held by these countries. Currently, these countries include:

• Argentina (July 22, 2010)
• Belgium (June 1, 2003)
• Brazil (May 16, 2013)
• Canada (July 20, 2005)
• Denmark (June 15, 2012)
• Finland (Signed on February 20, 2015; takes effect on March 1, 2017)
• France (May 18, 2013)
• Iceland (June 27, 2010)
• Ireland (Signed into law on August 29, 2015)
• Luxembourg (January 1, 2015)
• Mexico (not performed in all states but recognized in all states since August 10, 2010)
• The Netherlands (April 1, 2001)
• New Zealand (August 19, 2013)
• Norway (January 1, 2009)
• Portugal (June 5, 2010)
• South Africa (November 30, 2006)
• Spain (July 3, 2005)
• Sweden (May 1, 2009)
• The United Kingdom (England/Wales – March 13, 2014; Scotland – December 16, 2014)
• Uruguay (August 5, 2013)

Other nations may simply not recognize same-sex marriage or ban it outright. In any case, the main reason for knowing this is that if a same-sex couple were to move to one of the nations that do not allow same-sex marriage, they may find themselve unable to get divorced should they so desire.

Do I Need an Attorney If I Am Marrying My Same-Sex Partner?

Most people do not consult an attorney when they get married, unless they have substantial assets or other reasons for wanting to enter into a pre–nuptial agreement before tying the knot. Perhaps more people should consult with lawyers in order to fully understand the legal implications of getting married. One of the things that a couple might want to contemplate before marrying would be the implications of divorce.

In any event, marriage is always a complex legal arrangement that requires careful consideration. If you are planning to marry, you may wish to consult with an experienced local family law attorney before doing so, especially if you have issues such as a prenuptial agreement that need to be sorted out beforehand.