Florida same-sex married couples still need to take special estate planning steps

Last week the U.S. Supreme Court declined to hear appeals from several states whose same-sex marriage bans were found unconstitutional by lower federal courts, effectively making same-sex marriage legal in several more states. Currently, 32 states have marriage equality laws on the books. But here in Florida, it's a different story.  A state constitutional amendment denying same-sex marrieds any form of legal family status remains in force. For now. Given the rapidly shifting legal and political winds, many experts believe change is on the way. 

Five lower federal courts have already found Florida's same-sex marriage ban unconstitutional, including a ruling in August 2014 by U.S. District Court Judge Robert Hinkle. The judge immediately stayed his ruling pending action on other cases by the Supreme Court. With the Supreme Court now opting to remain above the fray, the ACLU has filed a motion requesting that same sex marriages be recognized.

Notwithstanding, there has already been one victory for same-sex marriage in Florida: When Judge Hinkle stayed his ruling, he made an exception for Floridians Arlene Goldberg and Carol Goldwasser. Partners for half a century until Goldwasser's death in March, they were married in New York in 2011. Since Florida does not recognize the marriage, Goldwasser's death certificate did not list her as married, preventing Goldberg from qualifying as a widow and from collecting the decedent's higher Social Security benefits. Judge Hinkle ordered the death certificate amended to reflect that Goldwasser was married at the time of her death.

If you are a same-sex married couple living in Florida, you do not automatically get the benefits and protections the state extends to other marrieds. For example, Florida law does not entitle a same-sex spouse to an elective share of the deceased spouse's estate. Therefore, in order to protect yourselves and one another, you have do some fancy footwork, from an estate planning perspective. A thoughtful estate plan can ensure that your assets go to whom you wish after death, as well as give you the authority to make financial and health care decisions for one another. An experienced Florida estate planning attorney can address these important issues, and draft the appropriate legal documents to put your minds at ease.

Update: Noting that "this particular issue now requires a prompt Florida Supreme Court decision," the Florida Attorney General on Oct. 13 requested that the state's 3rd District Court of Appeal in Miami send two same-sex marriage cases to the Florida Supreme Court for a decision. Her move could speed up resolution of the issue, so stay tuned.