Same Sex Marriage is Legal in all 50 States--Now What? Thoughts on the Practical Effect on the Practice of Law in Florida.

Same sex marriage (SSM) is legal in all 50 states as of June 26, 2015.  Now what?  [If you want to read the landmark decision of the US Supreme Court making SSM legal everywhere in the U.S., here's a link:  Obergefell v. Hodges.]

For Florida practitioners, there are four obvious areas in which the legalization of SSM will have an immediate and practical effect:  family law, estate planning, real property, and personal injury.

1.  Family Law:  where there are marriages, there will also be divorces. Practitioners have been fashioning SSM "divorces" for years through contracts but the remedy was woefully insufficient. The big change here from the parties' perspective is the entitlement to the benefit of the divorce code. The big change coming in family law practice is a revision of pleadings and forms such as prenuptial agreements to refer properly to the spouses in personal pronouns and appellations.  The general consensus developing is that the proper manner to refer to the parties to a SSM are Husband/Husband or Wife/Wife. [Side note; There's about a million other variations on this issue having to do with gender referencing but that is not what this blog post is about and many other more learned and nuanced sources exist on the internet--google it].  The use of the Husband/Husband or Wife/Wife appellations will cause some need for careful drafting though since most programs or forms rely on the Husband/Wife configuration to keep track of each party in a document.  So if your forms are built on that paradigm, you will have to be extra careful when using them to draft documents for a SSM-divorce or prenuptial agreement.

2.  Estate Planning:  Estate planning practitioners have also been writing same sex documents for years. The real change here is not necessarily the forms but the rights and privileges parties to SSM will now be entitled to claim.  For example, the surviving spouse of a SSM will now be entitled to claim pretermitted spouse status, elect to take the spousal share, inherit by intestacy,  be entitled to all of the rights of a surviving spouse with respect to homestead including an election to take the spouse's joint tenant's share in the homestead, be entitled to be Personal Representative in an intestate estate, and be entitled to claim personal property exemptions for personal property, vehicles and other tangibles. The HUGE impact the legalization of SSM will have on estate planning for same sex couples is really not quantifiable.  Check out my website for answers to Frequently Asked Questions about Probate and Estate Planning.

3.  Real Property:  Just as with family law and estate planning, documents will have to be revised; however, most real property practitioners have been writing deeds and other instruments for same sex couples for years.  Here again the HUGE change is the rights and privileges the SSM couple will now be entitled to claim.  First, having the right to own property as tenants by the entireties is a really big deal.  Why?  Because real property held as tenants by the entireties is very special, and immune from all efforts of collection unless the judgment holder has a judgment against both spouses.  This is really the only change for real property that matters (excluding homestead as addressed above).  The big change in practice will be remembering to acknowledge the SSM in our deeds.  Best practice has always been to reference the marital status of both grantor and grantee in every deed (so that a title examiner down the road can exclude homestead and/or tenants by the entireties issues from a transaction).  Now more than ever, this best practice will be paramount since before the homestead and tenants by the entireties was only an issue when the grantor or grantee was a man and a woman. Now any combination of genders could be a married couple so what before was a best practice is now an absolute necessity in my opinion.  I wrote about the history of homestead in Florida here.  Check out my website for answers to Frequently Asked Questions about real estate.

4.  Personal Injury:   Parties to a SSM will now enjoy the same spousal rights in personal injury and wrongful death cases as everyone else. Where before the uninjured partner in a same sex couple was not entitled to sue for loss of consortium, etc, a legally married same sex couple will enjoy these rights.

Many other practice areas will be affected by this epic shift in the landscape and my thoughts above are directed primarily to areas of my practice (1-3 above) in which I anticipate immediate changes.   Please note that I am not interested in a debate about SSM, or anyone's opinion on SSM so please do not bother commenting as I will be very liberal with the delete button. That said, I would love to read comments about the effect of this case on your practice.

Happy Wednesday!

Julie

Isler & Sombathy, P.A.


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