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Same-Sex Marriage – A New Right Brings Many Questions


In less than a handful of years, equal rights have been achieved for same-sex couples, brought about mainly by two U.S. Supreme Court cases: Windsor and Obergefell.

In United States v. Windsor (2013) the Court decided that certain parts of the Defense of Marriage Act (DOMA), which barred federal recognition of same-sex marriages, violated the Equal Protection and Due Process clauses of the U.S. Constitution. Two years later, the ruling in Obergefell v. Hodges (2015) established that marriage between same sex couples is a fundamental right, putting under “strict court scrutiny” any attempt to limit that right. For many same-sex couples, theses decisions are a sign of a brighter future. But in the meantime, legislators and lawyers have to scramble to catch up and update old laws. People should also take the time to keep abreast of the transforming legal environment, so they can make the best decisions about their lives.

The right to marry, which was long kept from same-sex partners, is a major change in many areas of law. Couples on the fence about marrying should carefully weigh the benefits – and potential shortfalls – that the ceremony could bring. A “married” status will change the rights and protections granted under many laws, change government application processes, and influence property ownership. For example, for “single” applicants, Medicaid looks only at assets and incomes under their sole ownership, while “married” applicants have sole and joint assets and incomes considered for eligibility. (It must be noted, however, that some states look at joint assets and incomes for unmarried couples that live together). Couples should also look at the regulations on estate planning, as a married status will provide new rules for asset distribution. For example, married spouses are eligible for what’s called “tenancy by the entirety,” which offers protection from creditors. Also, in many states, married spouses are automatically granted the health care power of attorney. This enables a mentally-sound spouse to make important medical decisions for an incapacitated one, from emergency treatment to end-of-life care. But some states do not provide this right automatically, in which case the right must be formally given.

Another area of law that greatly differs with the designation of marital status is adoption and child care. A problem may arise when only one spouse is legally recognized as a child’s parent (which occurs through surrogate pregnancy or through single-person adoption). This can cause major hurdles if the legally-recognized parent passes away, which can leave another relative as the child’s legal guardian. If a couple separates, this can leave the non-recognized parent without a right to visitation – or an obligation to pay child support. To address this – and to give both parents legal recognition – many states allow couples to elect a co-parent adoption (though some states only provide this option for married couples). If a couple decides not to marry, one of the parties could adopt the other’s child, enjoying an added tax benefit. Many same-sex couples who grew up in a world without marriage equality are looking at these legal complications for the first time – whatever the couple ultimately decides, a thorough examination of the options will help them choose what’s best for their future family. Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and Managing Research Editor of that publication.

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