Because of a Supreme Court decision, since June of this year, same sex marriages have been legal and recognized throughout the United States. However, this does not negate the effects of previous legislation and views of the states on the subject. And, even though many saw the decision as the end of a long battle, anyone who pays attention to the news can see by now that it was also just the beginning of a myriad of other contentious issues when it comes to how the law will be applied.
Because of our information-saturated culture, certain stories tend to catch the headlines and the attention of national media at a rate apparently disproportionate to their importance. Pundits love to rant about whether cake shops and pizza restaurants can legally refuse their services to gay couples on the basis of sexual orientation. But we should not allow the sometimes petty and superficial tone of the coverage fool us in to thinking that the implications of recognizing same-sex marriage are trivial, or that they are only of interest to same-sex couples.
There are the more obvious and mundane aspects of this national sea change, such as updating paper and electronic forms and processing systems. Then there are more prickly issues, such as how it will affect child custody cases. States in which same-sex marriages had already been legal for years may have a head start on addressing many of these issues. States in which they haven't been legal may be in for a bit more wrangling than others. But it appears inevitable that the past laws and attitudes of each state will continue to play a role in how same-sex couples are treated under the law moving forward.
To see how this is true, let's take a look at two cases:
In a state like Alabama, where Chief Justice Roy Moore is a well-known and outspoken opponent of gay marriage, issues such as inheritance rights or settlements can play out in different ways than they might in other states. This was illustrated by the case of Paul Hard, who had been seeking his share of the benefits of a wrongful death settlement after the death of his husband, David Fancher.
The two Alabama residents were married in May 2011 in Massachusetts. Just three months later, however, Fancher was killed in an accident with a large truck. When Hard arrived at the hospital, they initially refused to give him any information because he was not family. Later, in accordance with state law, the funeral home director insisted that the death certificate indicate that Francher had never been married.
In Alabama, proceeds from wrongful death cases are distributed under the laws of intestate succession. Although a revised death certificate issued in February 2015, after a federal judge struck down Alabama's ban on same-sex marriage, the state's marriage laws remained in limbo. Hard was not recognized as the surviving spouse, and therefore was not, according to the state, entitled to his share of a wrongful death settlement.
Four years after the accident, and after the Supreme Court decision recognizing same-sex marriage, the case was before U.S. District Court for the Middle District of Alabama. The question now was whether the Supreme Court ruling should be applied retroactively. "The issue is not whether same-sex marriage is legal in Alabama today," read a motion filed by lawyers representing Fancher's mother, who claimed to be the sole beneficiary, "The issue is whether same-sex marriage was legal in Alabama on the day David Fancher died…" Fortunately for Hard, and perhaps for others with similar cases, U.S. District Judge W. Keith Watkins disagreed. He said, "Alabama laws that refused recognition of Paul and David's marriage violated the U.S. Constitution," and determined that Hard is entitled to his share under Alabama law.
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Sabrina Maurer and Kim Underwood, a same-sex couple from Pennsylvania also had a wedding ceremony before gay marriage was made legal in their home state. And, like the first case mentioned, one partner, Kim Underwood, died before changes in the law were made which would have allowed them to legally marry.
Maurer and Underwood's ceremony took place in New Jersey in 2001. And, although they later talked of getting married again in a civil ceremony, their wishes were trumped by Underwood's serious heart condition. She finally died in November 2013, about one year before a federal judge ordered their state to perform same-sex marriages and recognize those that had already been performed. This left Maurer in a fight over death benefits, inheritance taxes and access to the couple's safety deposit box.
Despite the fact that the two women had not been legally married, a Bucks County judge recently ruled that the 2001 union be retroactively recognized as a common-law marriage. Helen Casale, who worked with the American Civil Liberties Union to overturn the state's ban on same-sex marriage a year ago, commented, "Is this going to create an avalanche of issues that are going to crop up? I think it's very possible, for better or worse."
For her part, Maurer seems to welcome the possibilities for others who are in situations like hers. "I hope that this helps other people who might not have had the same support of their relationship when their partner was alive."
Indeed, in one sense it doesn't matter where one stands politically, because, for better or worse, these issues are coming down the pipeline. And since they are going to affect a wide swath of the population, not only those directly in the LGBT community, it would be a wise move to pay attention to such developments and consider whether, and how, they might impact your own plans.
One feature worth noting in the above-mentioned cases is that they both involved a ruling that applied marriage law retroactively. It was a piece of serendipity that the assets had not already been distributed before these rulings came down, as each case might have been messier. If the estate had already closed, would Maurer have had to incur the expenses of reopening it? If the benefits from the wrongful death suit were already in the hands of Fancher's relatives, would Hard have had to sue his deceased husband's relatives?
Since most of us laypeople do not have the knowledge or foresight to anticipate how the changing legal landscape will likely affect our lives and those of our loved ones, it is only sensible to seek out those with the proper knowledge and tools. For one's own legacy, mapping out a family tree and drafting a Will with the help of trustworthy professionals is a great start. And in order to know where to go from there, a competent firm by your side is indispensable.
As complex as the above cases are, they could easily have been further tangled, to the point where they would have stayed in the courts for years to come. And yet we are left with the question of just how to take these increasingly complicated portents. Well, you could throw up your hands and let the chips fall where they may. But, the smarter planners would probably face these situations with more sophisticated strategies. A proactive option would be to find and hire a good genealogical service, which could find blood relatives and any relatives of a same-sex spouse. This way, appropriate plans could be made for any likely contingency. In a world full of uncertainty, the best, the only, way to safeguard your wishes and the interests of those you love is to have a proven, reliable team on your side.