The LBGT communities have seen some recent important gains in recognition of their rights to marry the person they wish, notwithstanding the gender identification of either party. The right to marry has been recognized recently by the Supreme Court of the United States in Orbergefell v. Hodges. This effects not only the right to insist on the issuance of a marriage license, but also has an impact on the granting of spousal rights under Social Security applications and other Federal programs such as Veterans benefits. The right to inherit from a spouse, whether or not the spouse is mentioned or provided for in a will is now guaranteed to those in these relationships, where it was not available before. It will have an impact on spousal visits in prisons, the rights to obtain and give information in health care/end of life decisions, and other important areas of the law. Adoptions by such non-traditional relationships will now be easier, as well. Several years ago, the Pennsylvania Supreme Court ruled that such adoptions were not prohibited, but each County has its own processes and there have been reports of some difficulty in pursuing those rights.
One aspect of particular interest is the right to purchase real estate as a married couple. Called “tenancy by the entireties”, this provides the right to automatically own, solely, jointly deeded property after the partner has passed, without the need to probate that property or to have to execute a new deed. There is no Inheritance Tax owed in Pennsylvania for property transferred to a surviving spouse, where under prior law, the partner was considered a “collateral” heir, and, thus, subject to the highest rate of tax (15%). This is an immediate benefit to the newly recognized marriages, as well as the waiver of sales tax in the transfer between spouses of automobiles in Pennsylvania.
Additionally, married persons can claim their spouses for Federal and State Income Taxes.
Another consequence of the expansion of marriage is the unfortunate need to legally extricate oneself from the legal ties of a marriage should the relationship no longer meet both parties’ needs. Divorce, custody and support will all be issues in such break-ups. This is a difficult but necessary consequence. With the right to marry comes the need to ascertain the contents and values of the marital estate (the assets acquired during the marriage) and the right to divide them appropriately. Of course, all persons contemplating marriage are able to enter into a Pre-Nuptial Agreement, which spells out the ownership and right to a portion of the marital assets, or the waiver of such rights. It is almost always a difficult decision to reach, without insulting one party by asking for such a document. However, if there are substantial assets to protect, or the need to set funds aside for children of a prior relationship, or other commitments, it may be an important decision to make. Our firm is experienced in these matters and is available to provide information, guidance and representation to those contemplating marriage. It is not a pleasant thought to consider the ending of a relationship when one is in the process of solidifying that and making it a legally binding commitment, but in many cases, it is a necessary consideration.
As in all expansions of rights, there will continue to be issues that crop up that were not expected or anticipated. That should not stop interested persons in pursuing their rights under applicable statutory and case law. Arnold, Beyer & Katz is ready to assist in asserting those rights within the legal structure. Our initial consultation fee is set at a low cost in order to give interested persons the ability to obtain information about their rights and to gain insight into how to assert those rights and the costs in pursuing them. Please do not hesitate to contact us to schedule an appointment if you have such questions.