Note: This article was penned prior to the June 26th ruling in favor of equal marriage by the Supreme Court of the United States.
Public support for marriage equality is at an all-time high, and has more than doubled since 1996, when the Defense of Marriage Act passed. Currently, 37 states and the District of Columbia permit same-sex couples to marry—Massachusetts having been the first just 11 years ago. In June, the U.S. Supreme Court will likely end the debate over marriage equality, deciding whether the 37 states with marriage equality or the 13 states banning same-sex marriage are legally correct. With the changes in the way same-sex couples have been and are viewed comes a host of legal implications, resulting in increased work for those representing lesbian, gay, bisexual, and transgender (LGBT) clients. In some respects, the recognition of same-sex marriage simplifies legal matters for those in the LGBT community, and in other ways it makes it more complicated.
The legal status of marriage means a host of legal services that were previously not available to those in the LGBT community now are. Attorneys who practice family law have been most impacted by the inclusion of the same-sex couples in the realm of marriage over the preceding decade. The dichotomy between those states that have marriage equality and those that do not has caused a legal quagmire in terms of portability—if a same-sex couple is married in one state, is that marriage recognized in a state that does not have marriage equality? While it seems unfathomable that a person’s marital legal status could change simply by crossing a state border, this is what same-sex married couples have been grappling with for years. While the issue of portability and recognition of marriage equality has created substantial legal work for attorneys practicing in this area, the truth is that most couples in same-sex relationships were not protecting that relationship by seeking advice from attorneys to draft legal documents such as cohabitation agreements.
With the rise in marriage equality and the increased recognition of LGBT rights, a new era has come, and same-sex couples are now, more than ever, protecting their families. For example, prenuptial agreements and other traditional domestic relations legal work that were once reserved for opposite-sex couples are now available to same-sex couples. With the prenuptial agreement, also comes the world of divorce, a world previously unfamiliar to same-sex married couples. Some same-sex couples have been “wedlocked” for years as they were married in a state that had marriage equality, and then moved to a state where their relationship was not recognized, resulting in their legal inability to divorce. Those couples are now able to divorce, and attorneys in this field have seen an increase in business associated with the dissolution of same-sex relationships. Another area of family law that has experienced growth in the last decade is adoption. Given that same-sex couples are not able to biologically procreate, adoption is very popular in the LGBT community, and legal steps must be taken to protect these families.
Before marriage equality, estate planning for same-sex couples seemed to be reserved only for those with wealth, as the legal morass in trying to protect same-sex relationships upon death was daunting for practitioners. Now, this once foreign world is more readily available to married same-sex couples. Traditional forms of estate planning (last will and testament, powers of attorney and living wills) were not often thought of in the LGBT world, despite the members of that community likely needing those protections more than those in opposite-sex relationships, who were most likely protected statutorily. Estate planning practitioners have seen an increase in same-sex couples protecting their families upon death. This uptick will continue as more jurisdictions recognize same-sex relationships.
Those practicing real estate law have also been affected by the advancement of LGBT rights. Previously, it was difficult, if not impossible, to protect same-sex couples from the burdens of property transfers, which were treated legally as if they were legal strangers. Transfer taxes and other property ownership benefits associated with a change in property title had to be paid by same-sex couples, while those transfers were typically made on a tax-free basis by opposite-sex couples. The concept of owing property as tenants by the entireties, thus protecting it from each owner’s individual creditors, was not available to same-sex couples. Many same-sex couples who owned property jointly before being married must now contemplate if their marriage changes the legal status of that property, or if steps must be taken to further protect their interests.
Undoubtedly, the increase in the legal recognition of the LGBT community has caused an associated increase in legal work for practitioners. For example, more than 500 rights and responsibilities are recognized by the law in relation to the term marriage. With the inclusion of same-sex couples in the marriage world comes an increase in legal work for practitioners. The growth in the legal market for those serving the LGBT community has been steadily increasing since the Massachusetts decision in 2004, and it will continue to grow as additional legal protections are afforded to lesbian, gay, bisexual, and transgender individuals.
About the Author
Gerald L. Shoemaker, Jr. is a shareholder at Hangley Aronchick Segal Pudlin & Schiller, P.C. in Norristown, PA. He can be reached at 610.313.1674 or gshoemaker@hangley.com.