This week the Supreme Court is grappling with two landmark cases addressing the ban on gay marriage. The legislation at the forefront of these debates: Proposition 8 and DOMA. The court will ask: Are they gender based-classifications, and if so, can such discriminatory laws exist?
Proposition 8 is a California constitutional amendment, passed in November 2008, stating that “only marriage between a man and a woman is valid in California.” Proposition 8 overturned California’s previous Supreme Court’s ruling which recognized that same-sex couples “have a constitutional right to marry.” DOMA, or the Defense of Marriage Act, is a United States federal law that defines marriage as the “legal union of one man and one woman.” DOMA was signed into law by President Bill Clinton in September 1996.
While we hope that gay marriage will get passed through Congress soon, couples are still legal strangers under federal law and in most state laws, including Florida. Even Justice Anthony Kennedy at the Supreme Court acknowledged that there is an “immediate” legal harm to those same-sex couples who cannot be married.
Unless gay couples take advantage of proper estate planning, the truth is that same-sex unions are not recognized and do not have the same legal protections as traditional married couples. Based upon civil union status, your partner will most likely inherit nothing upon your death and could even be forced to move out of your shared home. Imagine a scenario with an unmarried couple where one partner dies and there is no will in place. Legally, the remaining partner does not automatically inherit the shared home, assets, or any of their partner’s personal effects. Futhermore, same-sex partners in Florida have no legal rights in the following areas:
- No elective share, or inheritance of a portion of the deceased’s estate.
- Not considered next of kin regarding decisions about your partner’s medical treatment when your partner is incapacitated.
- Not considered next of kin regarding hospital visitation rights.
- Not considered next of kin regardingdecisions about your partner’s burial services.
- No protective tax treatment in terms of IRA’s and retirement plans.
- No shared access to their partner’s Social Security benefits or Medicare benefits.
Don’t just sit idle hoping that the government will make the right decision and protect you. Make sure your beloved partner is protected upon your passing. At Wild Felice & Partners, we can work with you to draft a comprehensive estate plan to recreate some of the rights and benefits of traditional married couples.
Some key elements include:
- Last Will and Testament to ensure that your estate is not blindly distributed according to intestacy laws.
- Living Will which will specify how you would like to be taken care of in case of incapacity.
- Designation of Health Care Surrogate which will allow yoursame-sex partner to give informed consent for your medical treatment.
Our South Florida law firm treats estate planning in terms of a married couple, so the fee plan for a same-sex couple will naturally get the same treatment. For more information on how to plan for your partner’s future, contact our South Florida law firm of Wild, Felice & Partners, PA for a free consultation at (954) 944-2855.