Legal Issues arising from Same Sex Marriages

More than 1,000 rights and responsibilities are automatically accorded to married couples. If marriages of persons of the same sex are recognized, these rights would apply to couples of the same sex as well couples of different sex.

Same sex couples can be granted rights and responsibilities by by state government, local government, federal government, private employers, and other private organizations. The fact that one unit of government (such as a state government) grants such recognition does not necessarily require other units of government or other organizations to also grant rights and responsibilities to same sex couples.

Here is a list of the main areas of state and federal law that would be affected if marriages of persons of the same sex are recognized by states or the federal government. (The list also notes rights that might be granted by employers or private sector organizations.) These rights also may apply to civil unions and domestic partnerships, although the scope of the rights granted by civil unions and domestic partnerships will vary depending on how the law is drafted.

• Family Law – distribution of property upon divorce; right to seek support (alimony or maintenance); right to seek custody, visitation, or parenting time; right to adopt; and right to care for a foster child
• Taxation – right to file jointly and utilize married persons’ tax rates
• Health Care Law – power to make decisions on behalf of incapacitated partner and right to access medical records
• Probate – intestate succession (right to property when person dies without a will); protection from being disinherited; preferential status to be named guardian or executor
• Torts – rights to seek compensation for wrongful death and loss of consortium (companionship)
• Government benefits – survivor benefits, including Social Security; military benefits, including housing, commissary, survivor, and education for children
• Private sector benefits – family health insurance; eligibility for life insurance; right to take sick-leave to care for family member; eligibility for family memberships
• Real estate – eligibility for tenancy by the entirety (traditionally only available to husbands and wives – a form owning property in which the joint ownership and right of survivorship generally cannot be eliminated as a result of one partner transferring his or her interest to another); homestead rights (which may protect home from forced sale for collection of debts or may grant favorable property tax treatment)
• Bankruptcy – joint filing for bankruptcy and preferential treatment of spouse for claims made under divorce decree or separation agreement, including nondischargeability of spousal support (nondischargeability means a bankruptcy court will protect a spouse who is due alimony or maintenance – if alimony has not been paid, the bankruptcty court will not excuse payment of that debt)
• Immigration – joint petitions to immigrate and preferred status for spouses or family members immigrating separately
• Criminal Law – privilege not to testify and application of protections under domestic violence laws