Moving Toward True Marriage Equality

by Cozen O'Connor
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With the recent decision of the U.S. Supreme Court, same-sex couples now have the freedom to marry, and divorce, throughout the Country.  There is finally marriage equality.

Certainly, being able to marry is important as not only is it the ultimate demonstration of love and commitment, but it also confers certain legal rights, that to date, some same-sex couples were not able to enjoy.  For example, with marriage, spouses also get certain mandatory rights of inheritance.  In Pennsylvania and New Jersey, a party cannot disinherit his or her spouse and even if one spouse dies without a will, the other will automatically inherit at least a third of the decedent’s estate.  In addition, married couples are able to file taxes jointly and receive social security benefits from their spouse.  They are also entitled to visit their spouse in the hospital and make medical decisions on his/her behalf.

What seems ironic is that by being able to marry, same-sex couples are now also able to divorce wherever they may live.  Prior to this landmark decision, couples who married in States where same-sex marriage was legal and moved to States where it was not, were not able to divorce if the marriage went south.  Our divorce laws are designed to give property and other financial rights to couples who were once married.  Without such rights, there is no standard methodology for dividing property that was acquired during the marital relationship, nor is there any right for a dependent spouse to receive support.

What remains to be seen with the advent of marriage equality, is whether same-sex couples will be given the green light to adopt children as a couple.  If they decide to have children through alternative reproduction technology (“ART”), i.e. a surrogate, egg donor or sperm donor, will both spouses be deemed the legal parents of the child by virtue of their marriage, although one of them has no biological connection to the child?  Once all married couples are treated the same, then we will have true marriage equality.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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