Client Compass, Divorce Law Monitor

Planning Considerations for Same-Sex Spouses in the Event of Divorce or Death

June 25, 2021


Marriage has always been governed by state law, and it is only in very recent history that select states began revising their definitions of marriage to acknowledge the rights of all couples to be married. While Massachusetts made same-sex marriage legal in 2003 via the decision in Goodridge, it was not until the landmark 2015 decision in Obergefell v. Hodges that the U.S. Supreme Court ruled that same-sex couples have a fundamental right to marriage, making same-sex marriage legal in all 50 states. Finally, same-sex couples could avail themselves of the many legal benefits of marriage that opposite-sex spouses enjoy. However, same-sex spouses often face unique and complex legal issues in the event of divorce or death, and their legal rights are unfortunately still not always secure. Some of these challenges can be avoided or minimized with careful and strategic planning.

Marital Agreements

Common in any divorce are determinations regarding the division of assets and potential spousal support. A major factor is the length of the marriage, which may be less straightforward for same-sex spouses. If a relationship between a cohabitating same-sex couple spanned 20 years prior to the legalization of same-sex marriage, yet their marriage of only two years is now ending in divorce, how much time gets counted? And what if the same couple entered into a civil union or domestic partnership at some point prior to their marriage? Some states may “credit” years prior to the couple’s actual date of marriage, but this is not guaranteed. In these circumstances, pre-nuptial or post-nuptial agreements can be extremely beneficial by allowing the parties to decide for themselves, prior to any marital discord, what they feel is a fair division of their assets and how spousal support will be determined in the event of divorce. Marital agreements may also outline the disposition of the spouses’ assets at their respective deaths.

Adoption of Non-Biological Children

Part of the process for any divorcing parents of minor children are determinations regarding parenting plans and child support. This typically contentious issue can become more complex when children of the marriage are linked through birth or biology to only one or to neither parent. While both opposite-sex and same-sex couples enjoy a marital presumption of parentage in Massachusetts, which legally recognizes both spouses as parents of any child born during a marriage (regardless of biological connection), the same presumption may not be available in every state depending on the method of conception. Children of same-sex couples may be conceived using donor genetic material, artificial reproductive technologies, and/or surrogacy, and unlike marital agreements, contractual agreements between spouses regarding custody or child support are not legally permissible. This could leave a non-biological parent with poor legal footing in a fight for parental rights. Adoption can resolve most questions and ambiguities regarding legal parentage of a non-biological parent.

Adoption also ensures that a non-biological child will inherit from his or her adoptive parent(s). By default (i.e., absent a legal document such as a Will or Trust to the contrary), adopted individuals have the same legal rights to inherit from their adoptive parents and ancestors as if they were related to them by blood.

Comprehensive Estate Planning

There are many opportunities for tax savings afforded exclusively to married couples, and spouses are potentially leaving money on the table if they don’t have a comprehensive estate plan in place. Same-sex spouses should include clear and comprehensive language with respect to the disposition of assets in favor of their children, indicating how non-biological and/or adopted children are to be treated for the purposes of each document. Guardianship provisions should be similarly comprehensive and carefully crafted.

Estate planning provides the opportunity to be thoughtful and strategic about the disposition of one’s assets, and to clarify one’s intentions. It is especially important for same-sex spouses and parents to be proactive in this regard, rather than leaving control of their estate up to evolving and ever-changing state laws.

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