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This article has been written by laurie
Israel. Laurie Israel has a website that can be found online at http://gaymarriagelawyers.com/Massachusetts.htm
Goodridge v. Dept. of Public Health:
Goodridge and You
Civil Marriage
The Massachusetts laws on marriage and laws
relating to "husbands" and "wives" deal with the
protections, rights, obligations and benefits of being married. These include
various property rights, and other personal rights during marriage. The law also
regulates rights upon dissolution of marriage. Having these hundreds of laws
applicable (with a multitude of cases construing these laws available) will
mitigate the uncertainty and instability imposed on gay people that resulted by
the previous same-sex marriage ban.
Same-Sex Marriage
Marriage is a voluntary union of two persons
to the exclusion of all others. It is a "deeply personal" commitment
to another human being and a celebration of the ideals of mutuality,
companionship, intimacy, fidelity, and family. Married people become family to
each other, and the family of a spouse becomes the other spouse's family.
The stability of a marriage is promoted by
economic certainty. Married people know that if they make a commitment to each
other, there are economic promises that flow from that commitment, for instance
the sharing of property and income. Until Goodridge, gays and lesbians
entering into relationships were uncertain as to their rights and obligations.
This uncertainty had the result of weakening gay and lesbian relationships, even
with the parties' best intentions. Ironically, the divorce laws (i.e., knowing
what would happen if a marriage breaks up) actually encourages the stability of
a marriage.
Same-sex Divorce Laws
Now it is clear that in Massachusetts, the
divorce laws will apply to same-sex couples that get married.
What Massachusetts law says about divorce is
that divorce must be "fair". Once all the facts and circumstances
regarding the marriage are analyzed, it is generally pretty clear what the
financial provisions of a divorce would look like. Same-sex couples wishing to
marry might do well to discuss with a divorce attorney what they are committing
themselves to prior to their marriage, so they can fully understand the economic
commitments they are making.
Basically, the longer the marriage, the more
intertwined the parties are, and the more the law will bind the parties to each
other for mutual economic support after the divorce. Older couples are generally
in a weaker position than younger couples who can financially recoup from a
divorce. Alimony may be required in a same-sex divorce. Parents of children born
in the marriage will be required to continue to support the children until
emancipation (generally when the child graduates college).
Under the divorce laws, property division
must be decided in a divorce. In Massachusetts, all property (no matter whose
name it is in, no matter who earned it, and whether or not inherited) is put
into one "pot", and then divided up based on the "facts and
circumstances" of the marriage.
In a very short marriage, unless there are
countervailing issues (such as a detrimental change of position), each party
generally leaves the marriage with what he or she brought into the marriage.
Often even in a short marriage, any increases in assets during the period of the
marriage are shared equally.
Prenuptial Agreements
In some cases (e.g., where there are
children from a previous marriage or relationship, or great disparity of assets
at the time of the marriage), a prenuptial agreement may be considered. Some
people wish to enter into a prenuptial agreement knowing that marriage is an
institution fraught with danger — many marriages fail. If the parties have not
known each other for a significant time before the marriage or are very young at
the time of the marriage, there would be concerns that the marriage may not
last. Other factors such as stepchildren and previous failed marriages can put
the success of the newly-embarked marriage in question.
Prenuptial agreements usually deal with what
happens in case of divorce or death. They can be so severe as to damage the
vitality of a marriage. If entered into, they should be planned well before the
marriage date because they entail some sensitive and difficult topics when can
change a joyous time into a very upsetting time. The rule of thumb is that they
should be addressed and concluded at least three months before the wedding.
Sometimes prenuptial agreements (if drafted
with minimum of restrictions) can actually promote the marriage by relieving the
parties or a party of a legitimate concern that can be fairly addressed in the
agreement.
Prenuptial agreements can be flexible. In
other words, they can completely self-destruct after a number of years (when the
marriage has "proved" itself). It can self-adjust or "ladder
down" its own terms over the course of the number of target years after the
beginning of the marriage as the marriage proves itself successful and durable.
In negotiating a prenuptial agreement, in
order for it to be upheld in Massachusetts, each side must be represented by a
separate attorney. (Sometime the parties engage a mediator to assist them in
thinking about the terms, but it is crucial that their respective attorneys
review, revise and/or draft the document.) The agreement must be fair at the
time of signing, and also fair at the time it comes into play (divorce or
death).
Same-sex marriages and children
A child born to married heterosexuals is, by
law, presumed to be the child of the husband. It will be interesting to see how
this provision is "rewritten" by the Goodridge case. It may
be that in the case of same-sex marriage that if the child is the result of an
an anonymous sperm donor, the non-biological parent will be deemed the other
"mother" without the need for a second-parent adoption.
In the case of male same-sex spouses and
women having children through known donors, it is likely that the biological
mother and father in each respective case will be required to relinquish her/his
parental rights for the same-sex spouse of the biological mother to become the
child's other parent. However, once this is done, the parenthood of the
non-biological same-sex spousal partner may be automatic, without need for a
court adoption process.
Marriage laws provide for support of
children during marriage and in cases of divorce. Again, because there is a
large body of law (both statutory and caselaw), regulating this topic with will
now be available to same-sex couples it will reduce uncertainty and make it very
clear how children will be supported after a same-sex marriage ends. This will
have a very salutary effect for the children of same-sex divorce.
Estate planning
Some of the rights and obligations of
marriage play out in what happens to the "estate" of a person when he
or she dies.
When a person dies without a last will and
testament, the laws of intestacy apply. For married persons, their estate is
shared between their "surviving spouse" and their children, and if
they do not have children, between the spouse and their next of kin. Next of kin
are the parents, followed by brothers and sisters, then nieces and nephews, and
finally by more distant relatives such as cousins.
When someone writes a last will and
testament, he or she may pass the entire estate to his or her
"spouse". This is why it will remain important for same-sex spouses to
write last wills and testaments.
If someone who is married does not make
provisions for his or her spouse, the spouse may "take against the
will" by filing with the probate court, and receive a substantial monetary
interest in the deceased spouse's estate. This is an important protect that
same-sex spouses will gain as a result of Goodridge.
Directive as to Remains
Under current law, the surviving spouse has
the right to determine what happens to a deceased spouse's body upon death. If
there is no surviving spouse, that decision is made by the next of kin of that
person. Under the new law, same-sex couples will no longer be required to
execute "directives as to remains" to control the burial of their
deceased spouse.
Federal tax and other benefits not yet permitted
Historically, federal laws, including tax
and benefit laws, have relied on state laws to define terms used for purpose of
federal laws. This is part of the doctrine of "states rights", which
entails a great degree of independent discretion invested in the states. This is
part of our political system.
It would have been the case that the new
definition of "spouse" in Massachusetts resulting from the Goodridge
decision would be applicable for purposes of Federal tax law. This would have
resulted in many important benefits, such as the ability of the same-sex spouse
to roll over the deceased spouse's 401(k) plan into an IRA, file joint federal
tax returns, receive social security survivors and divorced spouse benefits,
make unlimited transfers between spouses not subject to gift tax, and not be
required to pay federal estate tax upon the death of the first spouse.
The Defense of Marriage Act ("DOMA")
signed into law by President Clinton, ended the long-standing rule of law that
gives the states the power to define terms for purposes of federal laws — at
least when same-sex couples are involved. This means that even with Goodridge,
same-sex couples in Massachusetts will still not have the above rights available
to similarly situated straight spouses in the Commonwealth. The only way to
change this result would be for the U.S. congress to withdraw DOMA, or for the
U.S. Supreme Court to deem the legislation unconstitutional. As the Goodridge
decision indicates, and DOMA-like legislation here in Massachusetts would be
considered unconstitutional.
Real Estate Law
In the area of real estate, the Goodridge
ruling should now apply to certain important spousal protections and title
holding mechanisms. A declaration of homestead placed by one same-sex spouse
should now protect the other spouse (and their children) even after the
declarant's death.
Same-sex spousal property owners will now be
able to title their property in a "tenancy-by-the-entirety". This is a
type of joint tenancy with right of survivorship, in which the property goes
automatically to the surviving spouse at death, but provides protection for
spouses because a single spouse cannot separately sell, mortgage or lease his or
her interest in the property without the consent of the other spouse. This type
of tenancy protects the non-debtor spouse from being displaced from the home by
the creditors of a debtor spouse.
Health Insurance
Although many important federal benefits
continue to be out-of-reach to same-sex married couples because of DOMA (such as
gift tax and estate tax exclusion for marital transfers), there are a number of
laws in Massachusetts that will change involving access to employer-sponsored
health insurance. There are many Massachusetts statutes allowing an employee to
include his/her "spouse" and children in the coverage. These laws
allow for health insurance coverage during the marriage, and continued coverage
even after divorce. These laws serve to keep as many people in the Commonwealth
insured as possible.
Elder Law
Massachusetts elder law protects the home
for spouses when one has to go to a nursing home. Under former law, if the
same-sex spouse of someone in a nursing home had a much greater chance of losing
the home, either because the title was held in the name of the other spouse, or
because of a medicaid lien placed on the property to pay for the sick spouses'
nursing home costs.
Now same-sex spouses will have the same
rights, responsibilities and protections as other spouses when one of them
requires nursing home care. This means that the healthy spouse can stay in the
jointly-owned family home during his/her lifetime without it being taking away
for nursing home costs.
More importantly, fostering long-term
committed same-sex relationships by permitting civil marriage will surely result
preventing same-sex ill people from entering nursing home increasing the
instances where spouses provide loving home nursing support for each other.
Conclusion
All the above-described benefits, rights and
obligations are a truly important result of the Goodridge decision.
They are not only helpful to each individual in a same-sex marriage, but help
support and foster stability in this type of "permanent" long-term
relationship and provide financial security that is stabilizing to our society.
But even more importantly, the SJC's
decision affirms the dignity and equality of gay and lesbian individuals in
long-term committed relationships who wish to marry. Some of the individuals who
will marry after the 180 day stay have been in their relationships for many
years. This bodes well for the success of their marriages.
Clearly, same-sex couples value the
institution of marriage, as evidenced by the zeal in gaining access to the
institution. In permitting same-sex couples to marry, the institution will be
enriched and strengthened by the enthusiasm, appreciation and serious intent of
those to whom this privilege was previously foreclosed. This is bound to benefit
all the citizens of the Commonwealth — straight or gay.
For more information, read the SJC decision Goodridge
v. Dept. of Public Health.
This article has been written by
laurie Israel. Laurie Israel has a website that can be found
online at http://gaymarriagelawyers.com/Massachusetts.htm
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