Legal Tips for Gay Couples

A friend of mine who is planning a same-sex wedding that my wife and I are hosting, recently asked me about the legal implications of the marriage, considering that it will not be legally recognized in Florida. I prepared some tips for him and wanted to share them.

Federal Taxes: For federal tax purposes, the IRS recognizes same-sex marriages that are valid where they are performed, even if the married couple resides in a state that doesn't recognize the marriage. So for tax purposes, if a gay couple is married somewhere where the marriage is valid and legally recognized, they are treated as married even if they live in Florida.

Healthcare Proxies/Hospital Visitation Authorizations: This is one of the most important items and all same-sex couples should have these. These documents help ensure that same-sex couples are treated more equally to heterosexual couples when medical care is involved. Because the need for these documents will often arise unexpectedly, it is important for a couple to have them prepared before a crisis occurs. This way, the couple is prepared should an emergency take place and each partner has the legal right to be involved, make decisions and protect the other.

Where to Sue or be Sued? If you're being sued or need to sue someone, it is probably best to do so in federal court. Heterosexual spouses enjoy a marital privilege, which is comparable to the more commonly known attorney-client privilege. Confidential communications between the spouses are protected. In Florida same-sex spouses, even if married somewhere that recognizes gay marriage, can't take advantage of marital privilege in state court. As a result, in state court, another party may be able to ask about conversations held between the same sex-spouses (which they could not do with heterosexual spouses). Same-sex spouses have a better chance of being treated like heterosexual spouses on the issue of the marital privilege in federal court than state court in Florida.

What if My Spouse/Partner is Injured or Dies? Heterosexual spouses have direct claims against a person who negligently or intentionally injures their spouse in a claim called "loss of consortium." Because Florida doesn't recognize gay marriage, this claim is not available to same-sex spouses or domestic partners. However, same-sex partners may be able to assert a claim for negligent infliction of emotional distress if they suffer a physical injury as a result of emotional distress from witnessing the death or injury of their partner. This claim may not be successful in the Third or Fourth Districts (Broward, Palm Beach, Miami-Dade and Monroe Counties) as these courts have found that a "legal relationship" is required to maintain such a claim. The Florida Supreme Court hasn't yet decided this issue, but it should allow such a claim as its previous decisions have only required a "close personal relationship," which is clearly met by a same-sex couple.

Cohabitation Agreements: While Florida doesn't recognize same-sex marriages, cohabitation agreements or domestic partner agreements are valid. Similar to a prenuptial agreement, such an agreement may set layout spouse/partner responsibilities and provide for a division of the spouses/partners' property and provide for financial support of the spouses/partners. These agreements make sure that each partner is protected in the event of a divorce or separation. As Florida's division of property laws that apply to heterosexual marriages will not apply to same-sex couples, early planning is essential to protect both partners.

Durable Power of Attorney: As a parallel to the healthcare proxy, which addresses medical decisions, this document enables a spouse/partner to handle legal and financial affairs of the other in the event the other spouse/partner becomes incapacitated.

Will and Estate Planning: These are important for anyone to ensure assets are distributed the way they desire upon their death. However, by law, a surviving heterosexual spouse receives a certain percentage if there is no will and is entitled to what is called an "elective share" even where there is. Because same-sex couples cannot take advantage of these provisions, it is essential that they make a plan for the distribution of their property upon their death.

Adoption: Thankfully, Florida's ban on gay adoptions has been overturned, but many legal issues still exist. Where one member of a same-sex couple is the biological or legal parent of a child and the other is not, a second-parent adoption is recommended to ensure that both partners have equal parental rights with respect to the child. There are specific legal requirements in Florida (and elsewhere) to accomplish this. If a second parent adoption is not possible or wanted, then a co-parenting agreement, which spells out the legal rights and responsibilities of each parent, should be entered. If you're planning to adopt a child from another country, you may want to consider whether to proceed with a same-sex marriage, as some countries prohibit gay couples to adopt.

While not intended to be comprehensive, these tips should be most helpful.

Ari J. Glazer is a partner in the law firm Moskowitz, Mandell, Salim and Simowitz, P.A in Fort Lauderdale and has been practicing law for 17 years. His practice focuses mainly on commercial litigation and appeals. He lives in South Florida with his wife Stephanie and rescue dog Babka.