United States Supreme Court Case Makes Landmark Decision

Oh June 26, 2015, in Obergefell v. Hodges, Director, Ohio, the United State Supreme Court held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of the state. While the results in the case were anticipated, its effects on many issues are not yet clear.

If you are in a same sex relationship and intend on getting married, are married or have lost a same sex spouse to death in the past, there are many questions that remain unresolved. It is clear that resolutions of these questions will take some time for the courts and the government agencies to determine. Just a few of the issues are as follows:

1.  If you have a same sex spouse that has died in the past are you entitled to social security benefits offered to surviving spouses?

2.  What about the estate taxes that may have been alleviated if the spouse could have taken the marital deduction?

3.   What about the IRA that named a same sex spouse as a beneficiary and such spouse did not get to use the favorable tax spousal rollover provisions.?

3.  What if you owned a Florida homestead with a same sex spouse and Florida, not recognizing same sex marriages, did not provide homestead protection at the death of the first to die?

4.  What about the rights of minor children in a Florida homestead?

5.  What about the restrictions on descent and devise of Florida homestead?

ADVICE: As you can see while many applaud this decision, there are MANY areas of confusion and lack of clarity as to how this decision affects actions and planning that have occurred in the past. If you are in a same sex relationship and plan on getting married consult with an attorney first to determine the effect of marriage on different areas of law.  You may want to consider a prenuptial agreement (or post-nuptial agreement if you are already married). If you have a same sex spouse who has passed away, then you should consult your attorney to see if you have rights that may be asserted now.

New Word of the Week: Holding of a Case… The “holding” of a case is the court’s determination of a matter of law which is pivotal to its decision. The court may have other discussion in the case as to its opinion of the facts, etc but the holding is the final determination of the law.
 
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