In light of the events in the Supreme Court last
week, both of which affect my primary areas of practice, being Family Law and
Estate Planning, as well as other areas of law and rights, I thought a brief
commentary might be worthwhile.
First, Proposition 8 was legislation in the State of
California made, at least in part, in response to the City and Count of San
Francisco, allowing for Same Sex Marriage. Prop 8 prohibited Same Sex Marriage by attempting to limit a
definition of marriage as being only between a man and a woman. Through a variety of legal and
appellate gyrations, the Court of Appeals determined that Prop 8 was
unconstitutional as violative of individual rights, ostensibly under various
equal protection, due process and anti-discrimination aspects of law flowing
from the 14th Amendment.
Advocates for Prop 8, and against gay marriage, appealed. The U.S. Supreme Court, rather than endorsing
gay marriage, ruled on legal procedures, claiming that the advocates for Prop 8
were not harmed by the ruling against Prop 8 and thus did not have legal
standing. Thus, the lower court
ruling stands as valid, and same sex marriage is now allowed in California, and
many marriages have been performed just in the few days since this ruling. While this may not be a ringing
endorsement for same sex marriage, the practical implication, when read in
conjunction with a companion case addressing DOMA, the Federal Defense of
Marriage Act, is to allow for States to determine all laws necessary to
effectuate the union of two people, within their state. As a result, California becomes the 13th
state, joining Connecticut, Delaware, Iowa, Maine, Maryland, Maine, Minnesota,
New Hampshire, New York, Rhode Island, Vermont, Washington and D.C. in allowing
for some type of same sex marriage.
Second, as referred to above, the companion case to
the Prop 8 case, struck down Section 3 of DOMA, the Federal Defense of Marriage
Act. When enacted in 1996, DOMA
defined "spouse" and its related terms to signify a heterosexual couple
in a recognized marriage, and by doing so, codified the non-recognition of same sex marriages for all federal purposes, including insurance benefits for
government employees, social security survivors' benefits, immigration, bankruptcy, and the filing of
joint tax returns, as well as excluding same-sex spouses from the scope of laws
protecting families of federal officers, laws evaluating financial aid
eligibility, and federal ethics laws applicable to opposite-sex spouses. The impact is estimated to be felt in
over 1000 Federal laws.
In the 5–4 decision on June 26, the U.S. Supreme Court
ruled Section 3 of DOMA to be unconstitutional, declaring it "a
deprivation of the liberty of the person protected by the Fifth Amendment.” While debate will be ongoing,
especially as various states try to sort out this impact as well as their take
on the Prop 8 matter as may apply to their states, and as various departments
and agencies of the Federal government begin to re-interpret the practical
application of what remains of DOMA, there appears to be a significant
broadening of protections and rights of same sex couples, and those that become
couples in their states.
So, has does this apply to you? No easy answer there. Let’s start by saying if you are a
heterosexual person, it has no legal impact on you at all. You were able to marry a person of the
opposite sex, and for the benefit of my practice, you could either develop an
Estate Plan together, or seek a Divorce.
Either way, I’ve got you covered.
Moving on, if you live in one of those 13 states or D.C., you have been
and may continue to have a marriage with your same sex partner. Now, while we need to see how things go,
if you need to end that relationship, chances are, you will get a divorce, and
I can help you there. I will say,
that with regard to reproductive rights and progeny, same sex couples, who can have
children or adopt, may offer some unique fact patterns relative to children in
divorce, but there again, we have routine formats to address most split custody
matters, and if not, the courts are always there to help. Furthermore, I believe all states have
enacted Full Faith and Credit laws.
That is to say, one state will enforce the valid laws of another state,
if called upon to address them.
Thus, if you are gay, and get married in one of those states that allow
same sex marriages, and move to another state that does not allow for same sex
marriages, you still have a valid marriage and should be extended all rights
and responsibilities of a spouse.
There may be issues of some states allowing that, but I believe the
default position would be to allow and in not doing so there would be Federal
violations. Just my opinion, but
there have been similar changes over time, such as interracial marriages and
travel over state lines.
Perhaps more significantly, relative to Estate
Planning, there are many rights, privileges and penalties extended through the
Federal government that will have to be fleshed out, but should apply. As noted above, tax filing status would
be a prime penalty or option to sort out with your tax advisor. Tongue in cheek but true. Seriously, various survivor benefits,
pension rights, insurance rights, and many other matters that may impact your
Estate Plan and process may now be applicable for the same sex couple, just
like any other married couple.
Prior to this last week, no such rights existed, and work arounds were
part of Estate Planning for same sex couples, since they were not married,
similar to that of long time companions of the opposite sex who simply never
wanted to get married but wanted to provide for each other in their
passing. Irrespective of your
beliefs on this issue, hopefully we will never have to hear about life long
partners not allowed to be at the death-bed of each other, because they are not
spouse or family.
I am sure that in both of my areas of Divorce and
Estate Planning there will be more changes and challenges in proper
representation of the unique needs of my clients. However, it is such changes that keep lawyers on their toes. Make sure when trying to address these
unique issues with your legal and other professionals that you share all facts
and issues unique to your life, no matter how small, as you never know when
something small may adversely affect proper representation by any professional
on your A Team. (see my 6/9/13 blog - http://fbegun.blogspot.com/2013/06/the-team.html)
In the blogs that follow, I will get back on track
and discuss simple wills and the components necessary to make a complete and
valid will. However, if you have
any questions, feel free to respond below, or if you are interested in learning
more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or
Divorce, Custody, Visitation, Child Support, Spousal Support, Property
Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact
me at http://www.fcbegun.com/, fbegun@gmail.com or at http://www.linkedin.com for Fred Begun.
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