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Rainbow Relationships: The Legal Challenges Gay Marriages Still Face

On Behalf of | Mar 28, 2016 | Firm News

There is no more contemporary issue in law right now than the issue of the recent Supreme Court decision stating that gay marriages are legal in all 50 states and are backed by the US constitution.

Although this decision by the Supremes has created as many headlines as it has controversies, from a legal perspective, the rights of the partners in a gay marriage are clearer now than ever. There is a long history and large volume of case law regarding the rights and duties of marital partners. Now, with the legalization of gay marriage, any question of marriage obligations are under the general umbrella of marital law.

However, there are still many outstanding legal questions surrounding child custody, property rights, visitation, child support, and other issues associated with divorce. Aside from this, one of the main questions to be answered is:

What happens to the property prior to the legalization of gay marriage?

In the past, in those states that did not recognize gay marriage, the protection of the individual partner’s rights was usually accomplished through a contractual agreement such as a partnership agreement. Prior to the legalization of gay marriage, gay couples would protect each other’s right of survivorship by placing property into trusts, corporations or limited liability corporations to protect creditors and to give a surviving spouse the rights to the relationship property.

These existing legal agreements create complexities if the couple now wants to be married. Once the couple is married, the agreements will either have to be adjusted or voided.

In general, the best advice is to take an estate planning approach—i.e. creating a will, trusts, designating beneficiaries, powers of appointment, property ownership and powers of attorney—for those couples planning to marry so that there aren’t any complications after the happy wedding bells have been rung.  Just make sure you choose a lawyer with the kind of depth and experience need to handle these complex issues.