Courts direct Florida to recognize same-sex marriage

The courts have directed Florida to recognize same-sex marriage. Unless the U.S. Supreme Court rules otherwise, Florida same-sex unions are recognized, and same-sex spouses enjoy all the rights and obligations as any other married couple in this state. 

There are currently about 48,500 cohabiting same-sex couples in Florida, according to the Williams Institute at UCLA Law School. No doubt many of them will want their relationships legally recognized. (Couples who wish to marry in Florida may find the answers to their questions about securing licenses, waiting times and other procedures here.)

In prior columns I noted the special estate planning challenges gay couples have faced when trying to provide for and protect one another. While it's a different ball game now, the challenges haven't disappeared - they have just changed. Those changes will impact not only same-sex spouses creating an estate plan, but also anyone who wishes to leave assets to someone in such a marriage:

Here are the rights Florida same-sex marrieds now enjoy:

• The right to an elective share of the spouse's estate.
• The right to a life estate in the spouse's homestead, or one-half ownership in that property.
• Consideration as the natural health care proxy for the spouse, second only to a court-ordered guardian.
• The right to hold assets as tenants by the entireties, which provides certain creditor protections.
• If a same-sex spouse dies intestate, the survivor is now entitled to 50% of the estate if there are children from the decedent's prior marriage, or 100% if the decedent has no children from a prior relationship.

Of course, since the repeal of the federal Defense of Marriage Act, same-sex couples legally wed in any state have access to these benefits:

• Federal estate tax breaks:  Unlimited marital deduction when one spouse passes his/her estate to the survivor. A surviving same-sex spouse may also use any unused portion of the deceased spouse's exemption (portability). The current unified estate tax and gift tax exemption is $5.43 million.

• Social Security: Like their heterosexual counterparts, a surviving spouse in a legal same-sex union may opt to collect the decedent's Social Security benefits if those benefits are greater than what the survivor is currently receiving. Also, while both spouses are alive and collecting Social Security, the lesser-earning spouse can elect to receive 50% of the higher-earning spouse's benefit.

• V.A. Benefits: All the benefits that heterosexual married couples have enjoyed are now available to same-sex marrieds. For example, if the spouse is entitled to pension with aid and attendance, the survivor will also be entitled to those benefits, provided of course that he/she meets all other criteria. 

• 401-ks: Under federal law, the spouse is the automatic beneficiary.

• Individual Retirement Accounts: A deceased spouse's Individual Retirement Account can be rolled over into the survivor's account without being taxed, and the survivor may take minimum required distributions based on his/her own life expectancy, and then let the ultimate beneficiary stretch it out.

• Medicare: All the spousal privileges and benefits that apply to opposite-sex married couples are available to same-sex marrieds. Spouses of Medicare recipients can enroll in the program even if they lack the requisite work history. 

• Income taxes: Same-sex married couples may file joint returns.

Please call upon our experienced Florida estate planning attorneys for assistance.

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.