The Supreme Court’s historic ruling this week declared all state bans on same sex marriage unconstitutional. This means states will be required to follow federal mandates to perform and recognize same-sex marriages. Same-sex marriage is now legal, but this does not mean that same-sex couples can run out and get married tomorrow!
Technically, the Supreme Court’s ruling only applies to the same sex marriage ban that the Court struck down in the four states involved in the case: Ohio, Kentucky, Tennessee and Michigan. In all other states, like Louisiana, the ban stands until challenged in court. As of today Louisiana Attorney General Buddy Caldwell indicated that he will not instruct parish clerks of court to immediately issue marriage licenses to gay couples. He claims that a Federal ruling on this issue is infringing on what is traditionally within the control of individual states and trampling state’s rights. This is similar to what happened when the Supreme Court declared segregation illegal in 1954. Some states resisted implementation and efforts to integrate were marked with political and social resistance. Ultimately, however, desegregation endured, as will, in my humble opinion, the Supreme Court’s ruling on same-sex marriage.
This decision to strike down state bans clarifies the messiness of this issue. Previous to this ruling, same sex couples had to navigate a patchwork of state laws; only certain states performed and recognized gay marriages. This made life confusing and presented vast legal grey area for those couples who lived and married in states that recognized same-sex unions and later moved to states that did not. The Supreme Court’s ruling provides uniform recognition of the rights, privileges and consequences of legal marriage for same-sex couples.
Both hetero and same-sex couples often enter into marriage without a full understanding of its legal ramifications. Aside from its romantic nature, marriage is fundamentally a legal institution bringing with it very real rights and responsibilities. What legal rights are granted by marriage?
Taxes: Married couples have very real tax advantages. Same sex couples will now enjoy the same tax benefits as opposite sex married couples such as filing status, gift tax exclusions and estate tax benefits.
Estate Planning: Legal recognition of a long term partner as a spouse simplifies estate planning and succession for same-sex couples in Louisiana. For example, same-sex married couples will enjoy the same unlimited marital deduction for estate tax purposes as hetero couples do.
Health Insurance: Same sex couples can now get health insurance coverage for their partners on their health plans, the same way married heterosexual couples can.
Social Security and Survival Benefits: Spouses are entitled to claim and receive benefits based on the income of the higher paid spouse.
Community Property: In Louisiana, same-sex couples who marry will be subject to the community property regime. Community property means that all assets, money and debts that are earned or incurred during a marriage are shared equally between the parties. This included bank accounts in only one parties name, retirement accounts and 401Ks. Married couples can opt out of the community regime with a simple pre-nuptial agreement executed prior to the wedding.
Legitimacy of Children;
Divorce: Where there is marriage, there will be divorce. Same-sex couples are now subject to the same divorce, custody and child-support laws that apply to all married couples. The expense of divorce, both financially and emotionally, is a cost that all married people now must face in order to end the legal institution of marriage, gay or straight.
The Supreme Court’s decision did a lot to simplify the legal landscape for same-sex couples. No longer will they face a patchwork of states with varying laws. Instead, legally, at least, their marriages will be recognized and same-sex spouses will be given the same rights and responsibilities as all married couples. Its a great stride for gay rights, but it may take longer for society to accept this legal change. Like the resistance that occurred in Louisiana post Brown v. Board of Education in 1954, true societal change and acceptance takes time and doesn’t happen overnight. While the Supremes’ ruling this week won’t resolve all the complex issues, to quote the rapper Mackelmore, “a piece of paper isn’t gonna solve it all, but its a damn good place to start.”
If you are thinking about getting married, set up consultation to fully understand the legal ramifications of marriage in Louisiana and discuss whether a pre-nuptial agreement or change in your estate plan is right for you.