Blog Post

Navigating Same-Sex Marriage

  • By Daniel Gold
  • •
  • 03 Sep, 2024
  • •
“Aren’t we married under common law?”
It is striking how far things have some since I was sworn in as an attorney in 1993.  

I remember the “dawn” of domestic partnerships in California and its evolution to becoming something akin to marriage “lite”; when many other states, and the Federal government did not choose to give legal recognition to same sex relationships.

How far things have come since those early days.

Federal and State Recognition

Since the landmark Supreme Court ruling in Obergefell v. Hodges in 2015, ( holding that the right to marry is a fundamental right inherent in the liberty of the person and guaranteed to same-sex couples under the Due Process and Equal Prtoc Clauses of the 14th Amendment) same-sex marriage has been legally recognized nationwide.  States must now recognize same-sex marriages performed in other states.

This means that same-sex marriages performed in California are valid across the United States and vice versa.

Domestic Partnerships

In California, same-sex, and some heterosexual couples still have the option to enter into a domestic partnership. While domestic partnerships offer many of the same rights and responsibilities as marriage, there are differences, particularly concerning federal benefits. It is important to understand these distinctions and choose the arrangement that best suits your needs.

Key Legal Concerns for Same-Sex Couples

1. Parental Rights

Parental rights can be a complex issue for same-sex couples, especially if only one partner is the biological parent. It is essential to establish legal parentage to protect both parents' rights. This can be done through a variety of potential options:

  • Adoption: The non-biological parent can adopt the child to establish legal parentage.
  • Second-Parent Adoption: This process allows a same-sex partner to adopt their partner's biological or adoptive child without terminating the first parent's legal status.
There is a sub-specialty in family law of attorneys who handle surrogacy issues, which can be a resource for same sex couples. 

2. Property and Asset Division

Like opposite-sex couples, same-sex couples must navigate the division of property and assets in the event of a divorce or separation. California's community property laws apply, meaning that assets and debts acquired during the marriage are typically divided equally. Prenuptial or postnuptial agreements can provide additional protection and clarity.

3. Estate Planning

Estate planning is crucial for same-sex couples to ensure their wishes are respected and their loved ones are provided for. Key considerations include:
  • Wills and Trusts: Clearly outline how assets should be distributed upon death.
  • Durable Powers of Attorney: Designate a trusted individual to make financial and medical decisions if you become incapacitated.
  • Beneficiary Designations: Ensure that your partner is listed as a beneficiary on life insurance policies, retirement accounts, and other financial instruments.

4. Healthcare and Medical Decisions

Same-sex couples should take steps to protect their rights concerning healthcare and medical decisions. This includes:
  • Healthcare Directives: Establishing a healthcare directive or living will that specifies your wishes regarding medical treatment.
  • Medical Power of Attorney: Designating your partner as your medical power of attorney to make healthcare decisions on your behalf if you are unable to do so.

5. Legal Discrimination

Despite legal recognition, same-sex couples may still face discrimination in various areas, including employment, housing, and public accommodations. Understanding your rights and seeking legal recourse if you encounter discrimination is essential.

Conclusion

Navigating the legal landscape as a same-sex couple requires understanding your rights and taking proactive steps to protect your interests. Whether you are considering marriage, adoption, or estate planning, seeking experienced legal guidance can help you address potential concerns and ensure a secure future. For personalized advice and assistance, contact seasoned family law counsel for expert guidance on same-sex marriage legal concerns.


To learn more about my services, visit my services page.
Call: 949-756-0684
Email: dgold@tldlaw.com


Disclaimer
This information outlines a few of the concepts that surround same-sex marriage legal concerns in the State of California. It is not intended to be, nor should it be construed as legal advice for any particular situation. Please seek advice from TLD Law or your personal attorney in your state or jurisdiction.
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