Same-Sex Marriages and Family Law: Four Things Everyone Should Know
It’s Pride Month, and we’re sharing in the celebration! June 26th marks the eighth anniversary of the historic 2015 Supreme Court ruling in Obergefell v. Hodges, which granted same-sex couples the constitutional right to marry, and legalized same-sex marriage nationally. The landmark decision sent many joyous couples to the altar and added a new legal branch to family law practices.
While Obergefell v. Hodges was a tremendous step in equality, there are still some risks and considerations that LGBTQ+ married couples continue to face. Here’s a rundown of four legal factors same-sex couples should know about.
State Constitutions - More than 30 states still have constitutional amendments or statutes that prohibit same-sex marriage. While Obergefell v. Hodges is a federal ruling that overrides these state laws, it’s theoretically possible that a future Supreme Court could overturn the 2015 decision, and state constitutions would once again prevail (need we mention Roe v. Wade as a precedent?). Same-sex couples should be aware of any state-specific language that could potentially impact their marital rights, however unlikely it may seem.
Custodial Rights - Having children continues to be more legally complex for LGBTQ+ couples. When a couple decides to have or adopt children during a marriage, the parental rights still lean toward biology. This can create a host of legal considerations - a third-party (i.e. a sperm or egg donor) could have legal rights to visitation or custody, or, one person in a couple may need to legally adopt their partner’s biological child to gain parental rights even though they are legally married, and so on. LGBTQ+ couples who plan to have children, or have them already, should take extra care to discuss family structure and legal rights with a qualified family attorney.
Marital Benefits - On the upside, LGBTQ+ married couples now have access to a host of financial benefits - benefits they were previously excluded from. For example, someone whose same-sex spouse passes away can now qualify for Social Security survivors benefits. A same-sex married couple can pass monetary assets of any amount back and forth to each other during their lifetime without triggering the gift tax that non-married couples incur. A financial advisor can help a couple ensure that they take full advantage of their marital benefits.
Prenups - Ironically, the rush to walk down the aisle soon after the 2015 decision caused some couples to skip over a key pre-wedding step - discussion of a prenuptial agreement. It’s important for any soon-to-be married couple to consider protecting their individual assets with a prenup. We reiterate that a prenuptial agreement does not indicate lack of commitment to a partner, nor does it suggest doubt in the value of a relationship. In fact, a prenup fosters open communication, which ultimately strengthens a marriage.
As always, we’re cheering on the success of all married couples, and wishing them lifelong happiness.
At Artese Zandri, we welcome all couples to our practice. If you or someone you know has questions about family law, reach out to us for a complimentary consultation at consultation@artesezandri.com.