In the wake of the U.S. Supreme Court’s landmark Obergefell v. Hodges (2015) decision, same-sex marriage is now protected federally in all 50 states. In addition to Obergefell clearing the way for same-sex couples to get married throughout the United States, unions that couldn’t be finalized until this very ruling may now proceed. The ruling ushered in many other changes as well, including the recognition of marriages performed in other states and a more simplified divorce process.
While Obergefell dramatically altered the legal landscape for same-sex couples, citing the Equal Protection clause of the Fourteenth Amendment, there still are some legal considerations you may want to make before taking the plunge.
Same-Sex Marriage Legal Pros
Children and Your Rights
If you plan on having or raising children, your status as a couple greatly affects your rights regarding your children. In marriage, both partners have the same rights and responsibilities. In a divorce, both partners can seek custody and visitation rights like any married couple. Upon death, the remaining parent automatically becomes the primary legal parent.
Absent marriage, same-sex couples can sometimes turn to adoption in order to gain the rights of legal parents. While no states may deny adoption to same-sex couples — as long as they get married — unmarried couples may run into the same legal challenges unmarried opposite-sex couples face.
Joint Property Rights
Marriage generally creates a presumption of joint ownership of property accrued during the marriage. The presumption is the opposite for unmarried couples, where your property will be presumed to be owned by whoever acquired it. Deciding which presumption works best for you and your partner can be helpful in deciding whether or not to get married.
Death and Taxes
Marriage creates a legal framework for dealing with issues that result from death, whether regarding property, parental rights or taxes. To create these effects as an unmarried couple, significant time and expenses will have to be spent establishing a similar relationship by contract. Even then, some things can’t be recreated through contract, such as freedom from inheritance and gift taxes.
Another issue to keep in mind is the host of property-transfer taxes that by default don’t apply to married couples, but do apply to unmarried couples. It can make moving assets around in a cost efficient way very difficult for unmarried couples.
This is one of the largest reasons to get married, because the government provides a lot of benefits exclusively to married couples. A small sample of these benefits include Social Security benefits, health care benefits, nursing home care, and unpaid leave from your job to care for family members. In light of the 2015 Obergefell decision, federal and state benefits are available to all legally married couples in the United States, gay or straight.
Typically, legal marriage is the most reliable way to become a citizen in the U.S. While even legally married same-sex couples did not have this access to citizenship under the Defense of Marriage Act (DOMA), same-sex and opposite-sex unions are now equally protected under federal law.
Same-Sex Marriage Legal Cons
Marriage, for all of its pros and cons, requires that certain formalities be performed, which may or may not be what you want. Unmarried couples can get together, and break up, without all the formalities (and court hearings) required for married couples.
Dividing Your Property
One of the effects of marriage’s joint property status is that if you divorce, regardless of who is at fault, both partners are often entitled to half of the property accumulated during the marriage, depending on whether the divorce occurs in a community property state. Note that this also applies to liability for debts. As a result, many former couples become embroiled in costly legal battles over the division of assets in divorce.
For unmarried couples, on the other hand, each partner typically leaves with whatever they accumulated and responsibility for debts in their name. However, married couples have a right to seek alimony, whereas unmarried couples may have to account for this in a pre-marriage agreement.
Decide What’s Best For You and Your Partner
Given all of the above issues and factors, spend some serious time with your partner considering same-sex marriage legal pros and cons. If you plan on raising kids and you’re okay with taking on the other partner’s debts, then getting married may make sense. On the other hand, if you don’t necessarily want to be burdened with the other person’s debts or institutional marriage just isn’t for you, then it may not be right for you.