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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

Goodridge v. Dept. of Public Health:

Goodridge and You

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Civil Marriage
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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.

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Same-Sex Marriage
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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.

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Same-sex Divorce Laws
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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.

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Prenuptial Agreements
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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).

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Same-sex marriages and children
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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.

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Estate planning
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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.

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Directive as to Remains
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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.

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Federal tax and other benefits not yet permitted
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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.

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Real Estate Law
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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.

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Health Insurance
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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.

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Elder Law
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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.

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Conclusion
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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