Same Sex Marriage

If you are a member of the LGBT community—or have a family member who is—or have a friend who is, life change dramatically on June 26, 2015 when the U.S. Supreme Court held that everyone in this country has a right to marry the person he/she loves. In the past, the Court danced around this issue by holding that a same-sex couple who had legally married could not be charged inheritance tax upon the death of one spouse. The Court held that two gay men could not be prosecuted for sodomy. The Court also held that people have a fundamental constitutional right to educate their children as they please; to obtain contraception; to have an abortion; and to marry across racial lines. In light of that background, it was not surprising that the Supreme Court would uphold the right to marry a person of the same sex. In fact, marriage has become tied to federal benefits like the right to file a joint tax return, to inherit from a spouse who dies without a will, to take time off work to care for a spouse under the Family Medical Leave Act. When marriage is denied, those important benefits are denied. In fact, in U.S. v Windsor, the IRS had charged a widowed gay spouse over $300K in inheritance taxes that could have been avoided if the same-sex marriage in Canada had been recognized.

With marriage, however, comes a variety of other issues. Same-sex couples will now consider pre-nuptial agreements. They can now adopt as a couple in Michigan if married. And divorces will occur.

Faupel Law has long advised same-sex couples who were doing estate plans, buying real estate, and resolving disputes. Those same issues will continue, but now these couples will be governed by the same law that applies to other married couples. Instead of having to arbitrate disputes or just deal with them, these couples can file for divorce and be awarded spousal support, retirement benefits, and custody of and/or parenting time with children. LGBT people now have the same right to marry that other people do. More importantly, they are no longer treated as some sort of second class citizen—and their relationships will no longer be called “domestic partnerships” or “civil unions.”

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