Is Marriage or Its Equivalent Right for You

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Domestic Partnership in Maine
Maine has a program similar to Wisconsin’s, in that it includes
inheritance and other rights but doesn’t approach the marriage equivalent
relationships available in other states. Partners have the right to inherit
each other’s property and are considered next of kin for purposes of
making funeral and burial arrangements. They have the right to serve as
guardian or conservator if the other partner becomes incapacitated, and
to visit the other partner in the hospital, as well as other rights.
Is Marriage (or Its Equivalent) Right for You?
Now that same-sex couples in a significant minority of states actually
have the opportunity to enter into legal relationships that include
important rights and responsibilities, you will have to decide whether
marriage or a marriage-equivalent domestic partnership or civil union is
the best thing for you. Getting married or registering under new laws is
like sitting in the emergency exit row of an airplane: You need to receive
special warnings and be prepared for some real uncertainties, legally
speaking.
One of the most important complications that comes with marriage
or legal partnership is that it remains unclear whether other states will
recognize your relationship, or how the federal government will treat
your partnership. And it may take quite a few years for the courts to
unscramble all of these complexities. Ironic as it seems, it’s possible that
the federal government will see the light before some states do. This could
mean that your relationship could enjoy federal recognition without local
or state validation—the reverse situation of where things stand today.
The key lesson to remember, given all these gyrations, is that the actual
legal status of your relationship may change from region to region, and
from one government agency to another and one situation to another.
Don’t make any assumptions about what the rules are—instead, learn
where things stand in your state and then take appropriate action,
especially if you live in a state where full legal recognition is not the law
of the land.
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In addition to the uncertainties that go with getting married under
untested laws, you should consider the same pros and cons that every
couple considering marriage should contemplate. For example, depending
on your economic situation, marriage might be a positive or a negative
move—remember, marriage means not just sharing assets, but also joint
liability for debts and potentially the obligation to pay alimony if you
break up. Also, marriage and divorce records are public, so there’s no
staying closeted once you tie the knot.
Marrying may cause you or your partner to lose state-provided public
benefits, because your partner’s income will be counted along with yours.
Every marriage requires a formal ceremony, and every marital
separation requires some kind of formal court action—quite often
with the help of a lawyer. Usually, there is a residency requirement for
divorce, so if you intend to marry, register, or enter a civil union in a state
other than the one in which you live, consider the ramifications if your
relationship does not last. In contrast, unmarried couples can break up
informally, and without the state requiring them to live there for a certain
period of time.
In most states, assets acquired during marriage must be divided equally
if the marriage ends; in community property states the partners’ earnings
during the marriage are considered community property unless you agree
otherwise in writing. By contrast, if you are unmarried, your property
is co-owned only if you have an agreement to make it so and have
titled it jointly; and the same is true for debts and obligations. Transfers
of property when a relationship ends are tax free for legally married
couples, but not for unmarrieds, and probably not for most couples in
domestic partnerships (although your state’s law may provide certain tax
exemptions).
If you don’t marry, you will need to make sure that you write a will,
create a trust, or designate your partner as beneficiary on your IRAs and
other holdings, in order to pass assets at your death in the same way that
spouses can (without any written documents). And certain tax benefits
are forever denied to unmarried couples. For example, a surviving spouse
generally inherits all the property if the other spouse dies without a will and
has no children; this would be true for marriage-equivalent relationships
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How Do You Want to Structure Your Relationship?
Even though many LGBT activists have worked for decades for the kind
of social and legal legitimacy that marriage confers, plenty of people have
mixed feelings about it. Some reject domestic partnership and civil unions
as a “second class” legal status. Others believe that marriage as an institution
should be abolished, and the state should stay out of people’s private lives.
There are also a great number of people who agree that marriage should
be available to all, but they themselves would not marry—either because
they prefer the freedom to make their own agreements about how to share
their lives, without the encumbrance of the state’s requirements, or because
marriage is not in their economic interest. Whether or not you feel ready to
take on the responsibilities of marriage, you now have options that earlier
generations of same-sex couples could only dream of. Explore these choices,
learn about them, talk about them—and then make the decision that’s best
for your family.
Resource
For an in-depth analysis of all the personal, financial, and
legal ramifications of legally partnering or marrying, we encourage
you to read Nolo’s newest book for lesbians and gay men, and those
who advise and befriend them: Making It Legal: A Guide to Same-Sex
Marriage, Domestic Partnership & Civil Unions, by Frederick Hertz, with
Emily Doskow. For up-to-date information on the marriage equality
battle, check out the authors’ blogs, www.MakingItLegal.net and www.
QueerJustice.com.
58  |  A Legal guide for Lesbian and Gay Couples
as well. However, at death, a bequest from one spouse to another is free
from federal estate tax, regardless of its size. Because this is a federal law,
it does not apply to same-sex couples, regardless of the legal status of their
relationship. In some states, you can’t disinherit a spouse unless you have a
prepartnership agreement that addresses the issue specifically.
If you have children or hope to raise a family, marriage is probably
the right option. Married couples by law have equal rights to raise their
children, as well as equal obligations of support. If the relationship breaks
up, both parents can seek visitation and custody, and if one parent dies,
the other steps right in as the primary legal parent. The same is true
for unmarried couples only if both are legal parents of the children.
Otherwise, the second parent may be left out in the cold (see Chapter 10).
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