Florida and Same-Sex Marriage: The Initial Implications
By: Laura J. Berlowe-Heinish, Esq.
The federally enacted Defense of Marriage Act (DOMA) was passed by heavy, veto proof majorities in both houses in 1996 and signed into law that same year. It provided each state with the authority to determine whether it would allow same-sex marriage within its borders. It further allowed each state to determine whether it would recognize same-sex marriages that were performed legally in other states. Most important, in Section 3 of the Act, it was mandated that the federal government not recognize same-sex marriage and not apply any of the rights, duties, and obligations created under the aegis of the federal regulatory and statutory scheme to married same-sex couples. Touted as a method to define, preserve, and protect the definition of marriage as between a man and a woman, it left in its wake a host of unanswered questions. Would a child be deemed “born of” or “adopted into” a same sex marriage and treated as such? Would same-sex couples have access to the courts? Would same sex couples be able to obtain a divorce? What of custody and child support for children that are born to or adopted into a same-sex marriage?
In 2013, the Supreme Court of the United States heard the matter of United States v. Windsor, 699 F.3d 169 (2013) involving the constitutionality of Section 3 of DOMA. The Supreme Court struck Section 3 as unconstitutional paving the way for same sex couples who are legally married to receive social security, veteran’s benefits, health insurance, and retirement savings in the same manner as heterosexual married couples. This further set the tone for the underlying battle with the states that were still debating the legalization of same sex marriage within their borders. Following the decision, states began legalizing same sex marriage at a rapid rate through court decisions and passage of legislation. Today thirty-six (36) states have legal same-sex marriage, and fourteen (14) states ban same sex marriage. Seven (7) of the fourteen (14) remaining states have had their bans overturned and appeals remain pending.
On January 6, 2015, United States District Judge Robert L. Hinkle’s ruling that Florida’s same sex marriage ban is unconstitutional took effect in all 67 counties.1 Same sex marriage became legal in Florida on that day, and Florida clerks began rolling out the marriage licenses. In that ruling, Judge Hinkle held marriage to be a fundamental right under the Fourteenth Amendment’s Due Process and Equal Protection Clauses and the State’s ban subject to strict scrutiny. In striking the ban, he wrote:
The institution of marriage survived when bans on interracial marriage were struck down, and the institution will survive when bans on same-sex marriage are struck down. Liberty, tolerance, and respect are not zero-sum concepts. Those who enter opposite-sex marriages are harmed not at all when others, including these plaintiffs, are given the liberty to choose their own life partners and are shown the respect that comes with formal marriage. Tolerating views with which one disagrees is a hallmark of civilized society.
In a separate portion of that same injunction which was not stayed, Judge Hinkle ordered the State of Florida to revise the death certificate of Carol Goldwasser to include the name of her wife, Arlene Goldberg, one of the plaintiffs. The two were legally married in New York in 2011.
As of January, 2015, it is expected that within the next three years, 24,248 same sex couples will marry. The implications of all of the fast moving changes regarding same sex marriage are vast and complex. For example, Florida has presently not amended its Civil Rights Act to protect same sex couples and their families, and the federal anti-discrimination laws have yet to change either. Change is, however, coming. In Miami-Dade, Broward, Palm Beach, Tampa, West Palm Beach, Orange, Monroe, Key West, Miami Beach, and Gainesville, discrimination in workplace and housing is already prohibited as to gender identity expression and sexual orientation. Thus, we will likely soon see issues involving the expansion of employer benefits to LGBT (Lesbian Gay Bisexual Transgender) employees and their families.
As there are with most big decisions in life, marriage holds both positive and negative implications. Those implications are much more complex for same sex married couples. As such, proper legal planning before marriage becomes all the more important.
Because same sex marriage was not legalized in most states until within the last few years, it is expected that the first marriages will predominantly be couples who are already established in their lives together. Most such couples have much in the way of financial assets, established careers, and equity in homes. Other long-time couples will have existing debts and liabilities. As such, a prenuptial agreement will be an important consideration, and there will be certain nuances to these agreements not found in prenuptial agreements between engaged heterosexual couples. If a same sex couple has already married, many of these same issues can be dealt with in a post-nuptial agreement between willing parties. Such an agreement essentially divides the property into the individual property of one or the other spouse and then delineates what will happen in the event of a separation and divorce. Some of the key considerations will be legal recognition of the marriage (discussed more fully below), children, spousal support issues, prior comingling of assets, tax implications, the manner in which existing joint properties are held, and the manner in which new joint properties will be held.
Some of the necessary differences between agreements drafted for heterosexual marrying couples and same sex marrying couples are rooted in the United States Supreme Court’s ruling that states cannot be forced to recognize the legal same sex marriages of other states. This is called the issue of “portability.” For example, such an agreement must sort out what the agreed procedure will be if one or both parties move to a state that does not respect the same sex marriage entered into in another state. Indeed, as a result of this particular issue, same sex couples may also want to consider the use of trust instruments or other legal vehicles that keep property separate and outside the realm of typical marital instruments.2 In that same vein, a marrying same sex couple may wish to have healthcare proxies in place that approximate the rights normally afforded to same sex spouses, so that in the event a healthcare emergency arises in a location that does not recognize the marriage, those rights will be respected. Likewise, mutual durable powers of attorney may be advisable for certain purposes. Finally, for purposes of this introductory, limited article, same sex couples may wish to obtain wills to protect each other, as if one dies intestate in a state not recognizing the same sex marriage, the other spouse will be denied an intestate share. Similarly, the same sex couple with child should warn their families who write their children into wills or trusts that in a state not recognizing a same sex marriage, a child of such a marriage may not be recognized as falling within a class such as “grandchildren” in a Will or trust instrument.
Obviously, where there has been a prior adoption of a child or children into the relationship (even if not a legal, joint adoption) or the birth of a child (whether biologically related to one or neither of the parties), there are more issues to resolve, and those issues will be substantially more complex than those involving the couple’s assets. It is important to recognize that some child issues cannot be dealt with by contract regardless of the nature of the marriage union. Furthermore, because not every state has agreed to recognize same sex marriages of another state, a child’s legitimacy in one state may not be “portable” to another state. Those issues are not specifically addressed in this basic article.
Because civil unions have existed in some states long before the growing approval of same sex marriage began, the newly engaged same sex couples have the benefit of the experience of states that have been at the forefront of this issue, and it will soon be the case that most family law attorneys will be able to draft enforceable prenuptial agreement and post nuptial agreements. However, due to the complex nature of the differences, it is best to approach counsel that is highly experienced in the area of matrimonial and family law and Board Certified.
Although most people have some trepidation about the process of creating a prenuptial agreement or postnuptial agreement, couples who cannot work through this process should strongly consider whether entering into a marriage is the correct path for their relationship. The creation of such an agreement creates, for many, a comfortable certainty about property ownership, financial rights, and financial obligations within the marriage relationship, and such agreements can also allow for the creation and growth of joint property into the future if a couple so desires. Because of the special complexities that come with same-sex marriage, efforts to create more certainty about these important rights and responsibilities are all the more necessary.
Bibliography
Brenner v. Scott, 999 F.Supp.2d 1278 (2014)
Adkisson, Jay. “Before Marriage, Same Sex Couples Need Prenups.” Forbes, June 27, 2013. http://onforb.es/19ziCy5 (accessed 1/22/2015).
Rothhaus, Steve. “Federal Ruling Clears Way for Same-Sex Marriage in Florida Starting on Tuesday.” The Miami Herald, January 1, 2015, http://www.miamiherald.com/news/local/community/gay-south-florida/article5296830.html (accessed on 1/22/2015).
Zupcofska, Peter. “When Couples Are Same Sex, Drafting Considerations Differ.” ABA Law Trends & News Practice Area News Letter. Spring, 2010, Vol. 6, No. 3, http://www.americanbar.org/content/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/10_spring_fam_feat2.html (accessed 1/22/2015).
Gay Marriage Pros and Cons, ProCon.org, “36 States with Legal Gay Marriage and 14 States with Same-Sex Marriage Bans,” February 3, 2015, http://gaymarriage.procon.org/view.resource.php?resourceID=004857 (accessed last on 2/9/2015).
1 The opinion titled, Brenner v. Scott, 999 F.Supp.2d 1278 (2014) granted a preliminary injunction preventing the State from enforcing its ban. The preliminary injunction, initially stayed, took effect on January 6, 2015, but the state defendants have appealed to the Eleventh Circuit Court of Appeals where the matter is styled Brenner v. Armstrong.
2 It is important to recognize, for example, that in a state not recognizing same sex marriage, real property cannot be held by the same sex married couple as a married couple and passed without tax implication upon divorce.
The article is authored by our associate, Laura J. Berlowe-Heinish. Laura has been practicing law in Florida since 1997, concentrating in family law and commercial litigation. She is an honors graduate of the University of Miami, School of Law where she was a member of the Entertainment and Sports Law Review, and she also holds a Master of Science in Mental Health Counseling from Nova University. She was previously published in The Florida Bar Journal (2007) and The Computer and Internet Lawyer (2008).