Protecting the Rights of Same-Sex Couples
Same-sex marriage is now legal in Florida. As of January 6, 2015, same-sex couples are granted the same rights as heterosexual couples regarding inheritance, taxation, creditor protection, medical decisions and other family and planning matters. In addition, the federal government has recognized same-sex marriages since the Supreme Court of the United States ruled on June 26, 2013 that a law denying same-sex couples the same rights as heterosexual spouses was unconstitutional.
Walser Law Firm has been helping diverse families throughout Florida with estate planning and probate services for more than three decades. Every estate planning attorney in our office understands the positive impact these laws have on the LGBT community in Boca Raton and throughout the state of Florida. We applaud the recognition of these important LGBT rights and are hopeful that same-sex couples will continue to be treated justly.
Unfortunately, more than a dozen states still do not recognize same-sex marriage. If you travel outside of Florida or move to a state that does not recognize your marriage, you may be denied your rights. For this reason, Walser Law Firm suggests implementing many of the same protections we advised when same-sex marriage was not yet legal anywhere in the United States.
History of Same-Sex Marriage Rights in Florida and the United States
Florida is the 36th state to legalize same-sex marriage. The U.S. District Court found Florida’s ban on same-sex marriages to be unconstitutional in Brenner v. Scott and Grimsley v. Scott and issued an injunction as of January 6, 2015. The state is appealing the court’s ruling to the Eleventh Circuit Court of Appeals. Currently, same-sex couples can be married and we believe the higher court will uphold this right.
The Supreme Court of the United States overturned the deceptively worded 1996 Defense of Marriage Act (DOMA) in the United States v. Windsor decision in June 2013. DOMA prohibited the federal government from recognizing same-sex marriages, which had the effect of imposing death taxes on spouses and denying spouses important Social Security benefits, among other inequities. The federal government can no longer discriminate against legally married same-sex couples.
The U.S. Supreme Court has agreed to hear same-sex marriage cases this session and to issue a definitive ruling as to whether same-sex couples in every state have the right to marry.
Protecting Your LGBT Rights
Until every state in the union legalizes same-sex marriage, Walser Law Firm recommends putting safeguards in place, including:
Draft your living will and power of attorney: Generally, a spouse is responsible for making medical care decisions should a married person become incapacitated. Hospitals in states that do not recognize same-sex marriages may deny you the opportunity to speak on behalf of your spouse. In addition, you could even be denied access to your incapacitated spouse during a medical emergency unless you have the appropriate advanced directives.
Write your will: Writing a will is important for everyone, but is imperative for same-sex couples. You can clearly state your intention to leave your assets to your spouse through this instrument. We recommend referring to your spouse by name to avoid legal challenges if you move to a state that does not recognize your marriage.
Title out-of-state property as joint tenancy with right of survivorship: If you jointly own real property in a state that fails to recognize your marriage, your spouse’s family could inherit the portion owned by your spouse. Titling real property as joint tenancy with right of survivorship grants each of you full ownership upon the death of the other.
Address guardianship of your child: You are a family, but sadly, some states may not recognize the rights of the non-biological parent. Naming the non-biological parent as guardian can add an extra layer of protection for your child.
Learn More About Protecting Your Rights Through Effective Estate and Life Planning
The Walser Law Firm supports LGBT rights. Our attorneys protect the rights of same-sex couples through crucial estate and life planning tools. Schedule an appointment at our Boca Raton main office or our Palm Beach Gardens office by calling (561) 515-5912.