Family Law and Estate Planning: “Summary of Current Legal Ramifications of Same-Sex Marriage in Minnesota”

Bench and Bar, the publication of the Minnesota Bar Association, offered in their most recent January 14, 2014 issue a great article that summarizes some of the legal ramifications for same-sex marriage since the convergence of United States v. Windsor, the Defense of Marriage Act (DOMA), and the legalization of same-sex marriage in Minnesota (new opportunities and new questions). Attorneys and law professors from around the Metro area discussed the “legal landscape” of their areas of expertise (Dale Carpenter, Nancy Zalusky Berg, Sonja Dunnwald Peterson, and Mark Frey).  I’ve attempted to summarize below their comments in particular areas of interest for my clients:

Constitutional issues:

In United States v. Windsor, the US Supreme Court held that, as far as the Federal Government was concerned (not the State governments) DOMA was an uncharacteristic federal imposition of marriage regulations because the states have traditionally been responsible for their own requirements and regulations on marriage. Basically, Congress was letting their animus toward same-sex couples show when they passed DOMA!   Further, the Court found that leaving same-sex couples out when defining who is eligible to marry was unconstitutional because it denied some couples equal protection and due process under the 5^th Amendment.

So, in short, at this point the states still get to decide whether same-sex couples can be recognized or not within states – only the federal government will recognize all same-sex marriages.  This fight isn’t quite over yet.  But, this is how it stands now. Therefore, in terms of estate taxes, immigration, and benefits, the federal government will allow you to file/apply as a married couple, but if you live in a state that does not recognize same-sex marriage, you can’t file/apply for state benefits or deductions as a couple.  Additionally, you can’t force your religion to recognize your marriage or perform the marriage ceremony for you if their doctrine and practices don’t approve.  But, of course, there are a number of alternatives to religious marriage ceremonies.

Family Law and Estate Planning issues:

Although in Minnesota same-sex couples have the right to be treated like any other traditional family in the Family Law arena, it’s not always quite that simple. There are still some less than crystal clear legal issues that may plague same-sex couples in the areas of “divorce, child custody, property settlement, adoption, health care directives, premarital agreements, estate planning, taxation, and more.” (N. Zalusky Berg)

The property issues often stem from not quite understanding how marriage can change both parties’ interest in real estate.  If you divorce down the road, you don’t want to be surprised. Also, those who have lived together as domestic partners and are now considering marriage should likely get some advice about how to retitle, if they should at all, their old property title.  And, what is true for property interests is also true for retirement accounts and other investments, personal property, etc.

Basically, if you’ve enjoyed a long-standing relationship before you got married, then a good portion of your assets are going to be considered “pre-marital” which may profoundly skew what the couple perceives as equitable ownership. I have tried to encourage my clients to draft a pre-nuptial agreement (pre-marital agreement) not so much to define what belongs to both members of the couple individually, but rather, to define what is to be considered marital property before the marriage in the case of divorce.

Child custody matters have been clarified for many same-sex couples, because now married couples in Minnesota (same-sex or not) who have a baby are listed as “parents” on the birth certificate. This makes handling custody and parenting issues after divorce much more fair.  Adoption is easier than surrogacy, however, and surrogacy issues remain more complicated.

As far as Estate Planning and Tax Law are concerned, because Minnesota recognizes same-sex marriage, same-sex couples have the rights and benefits of traditional couples in terms of both federal and state taxes and benefits. They may file taxes as married (filing jointly or separately). Employer benefits, health insurance benefits, inheritance issues and other benefits are treated the same as traditional couples. But, heads up if you move to a state that doesn’t recognize your marriage!

The ability to make health care decisions for each other as a same-sex couple can get complicated if you leave the state.   It means that Health Care Directives become even more important. If you have a health emergency in a state that doesn’t recognize your marriage, having a validly executed Health Care Directive that names you as your spouse’s agent will allow you to continue to make those important decisions.

In summary – if you’re a same-sex couple considering marriage, I would highly recommend talking to a legal professional to make sure you avoid surprises and that you understand the benefits and duties of marriage you may not have considered before.

ALL READERS:  This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.