Gay couples can now legally marry in six states and the District of Columbia, and can also enter into a civil union in five others. However, since same-sex marriage is not legally recognized by the federal government, these couples are not entitled to any of the 1,000-plus benefits the federal government provides to legally married couples. All the same, there are benefits to a state-recognized legal marriage or civil union, and gay couples living in any of the states that perform or recognize same-sex marriages or civil unions need to carefully consider their options when deciding whether or not to marry. As quickly as laws are changing, it's also never too early for couples in other states to consider what they might do if and when same-sex marriage becomes a reality in their state. Some of the biggest factors to consider when deciding whether or not to legally formalize a union include decisions on raising children, owning property, and providing health benefits.
Same-sex couples who want to be parents or who have children from a previous relationship need to consider the benefits and protection a legal union can provide their children. Both partners in a marriage have rights and responsibilities toward the children of that relationship. For children born or adopted after marriage, both parents should be considered the legal parents of that child, just as with a heterosexual married couple; however many attorneys continue to recommend that non-biological parents complete stepparent or second-parent adoptions. Adoption provides extra protection if the family travels or moves to a state that doesn't recognize same-sex marriage, and ensures that the federal government will recognize a legal parent-child relationship. Another benefit to marriage, if children are involved, is that in the unfortunate case of divorce both parents are entitled to seek visitation or custody. Legal parent status makes a case for parenting time or custody easier; it may not matter how involved you've been in raising a child if you have no legal relationship. And if one parent dies, in a marriage the other parent generally will assume responsibility as the primary legal parent. Without the protection of marriage and second-parent adoption, this relationship cannot be assumed.
You don't have to be legally married to own property with your partner, but if you are married when you purchase property, generally it will be jointly owned no matter who wrote the check. If you wish to own property together, getting married before purchasing a home or other property is probably the most efficient way of doing it; otherwise you'll need legal assistance to establish who owns what and what percentage each partner is responsible for or entitled to. If you want to get married but prefer to own property separately, a prenuptial agreement can help avoid the joint ownership presumptions of marriage.
No one wants to think about the end of a relationship at the beginning, but the reality is couples split up. There are benefits and drawbacks of a legal union in this case. Unmarried couples can generally split without any formal court action. However, if children and/or property are involved, unmarried partners have no protection under the law, while in most states, married spouses are entitled to roughly half of any property acquired or earned during the marriage. By the same token, spouses are also jointly responsible for debts acquired during the marriage.
Legally married same-sex couples can usually file joint state tax returns, although they cannot yet file joint federal returns. Whether this is a benefit or not depends on the state tax system and the joint income of the couple in question. Usually couples with lower incomes can end up paying less in taxes by filing joint returns. In a marriage, the surviving spouse generally inherits all property and assets if the other partner dies without a will. State laws differ as to what spouses are entitled to when there are surviving children. Without a legally recognized union, you'll need a will to ensure your partner will inherit, and if you die without formalizing your wishes your partner would have no legal say in arrangements or disposition of your estate. The caveat, of course, is that the same principle applies to debts, and in general, a will is a good idea regardless of marriage status.
People who work for companies offering domestic partner benefits have to pay income tax on the value of their partner's benefits. In states recognizing same-sex marriage, you may not have to pay that income tax, at least at the state level, if you are in a legally recognized union. The partners of people who work for their state in some capacity can generally share state employee benefits with their same-sex spouse without any caveats -- meaning your partner would be eligible for health insurance, survivor pension benefits, and any other benefits extended to opposite-sex spouses at the state level. Spouses may also have be entitled to worker's compensation benefits or be eligible to bring wrongful death suits if their partner dies from a work-related injury or illness. Depending on the benefits offered to legally married couples at your and your partner's place of employment, you may also be entitled to extend health, dental and vision insurance to your partner; use of family sick or bereavement leave; accident and life insurance for both spouses; parental leave for a child you are co-parenting whether by birth or adoption; and death benefits.
It's always a good idea to check with an attorney when you're considering entering into a marriage or civil union. The laws of each state differ, and a family lawyer can help you determine whether you need a prenuptial agreement to cover assets and debts brought into the marriage, what benefits marriage offers you from a legal and financial standpoint, and help draw up wills and adoption papers.
Divorce / Separation Lawyer