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Same-Sex Marriage : Legal Implications Much Larger Than "Marriage" Statute

  • Blog Post by: Jason Brown
  • June 2, 2013 - 4:31 PM

Last week, it became readily apparent to me that same sex-marriage will change the way we think as family law attorneys – not only in terms of divorce, but also on peripheral family law issues.

A lesbian couple came in to visit with me concerning adoption. One partner was the biological parent of a child. Father was out of the picture. Mother and mother’s partner wished to have mother’s partner adopt the child. In the old days (we’re there until August 1, 2013), a traditional adoption process would have followed – including a federal background check and lengthy home study with a social worker.

A large light bulb went off. Now that this couple is free to marry, mother’s partner can become a step-parent to the child. The couple can now take advantage of the much simpler process of step-parent adoption in Minnesota.

Not only did I have to retool my thinking on the fly, I also realized that my step-parent adoption intake forms needed to be changed to reflect this new era. The couple and I had a good chuckle over completing our questionnaire that used “husband” and “step-father” as descriptors.

The concept of marriage is defined in Minnesota Statutes Section 517. When Governor Dayton recently signed the marriage equality bill into law, a number of other statutes were implicated – whether in relation to divorce (Section 518), prenuptial agreements (Section 519), step-parent adoption (Section 259), estate planning (Section 524) or criminal defense (Section 609).

Here are just a few of the legal consequences stemming from the right to marry:

- Naturally, when one has the right to marry, one has the right to dissolve the marriage. Same-sex couples now have the ability to utilize the statutory framework found within the existing divorce statutes in terminating their relationship. That framework includes the equitable division (almost always equal) of property acquired during the marriage, and the right to seek spousal maintenance.

- If an individual has the right to marry, they also have the right to execute a prenuptial agreement. Such agreements allow the parties to a same-sex marriage to spell out the rules of financial allocation following divorce, or death, even if contrary to existing dissolution or probate statutes.

- Same-sex couples who marry will find themselves protected under the probate code by standing first in line to inherit in the absence of a will, and through the right to claim the elective share, if disinherited by their spouse.

- In criminal cases, marital privilege precludes a spouse from being forced to testify against the other. Same-sex couples electing to marry will now benefit from that particular privilege.

No doubt, there are many other state statutes affected by marriage being redefined within Section 517 – not to mention federal tax, social security and pension regulations.

As an attorney, it is exciting to jump into a new set of rules and try to sort things out. Given the broad impact of same-sex marriage, that sorting is bound to go on for quite a while.

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