The historic legalization of gay marriage by the New York legislature will more than likely be a boon for caterers, party planners and the like.
For attorneys dealing in marriage law or in trust and estate law however, the law”™s passage means that lawyers and judges will need to do their homework, said Lynn Maier, a matrimonial attorney at Kurzman, Eisenberg, Corbin and Lever, L.L.P. in White Plains.
Gay couples who wed in New York and remain in the state won”™t be faced with any legal issues, Maier said, but added that the couples who get hitched in New York and then move to another state could face any number of legal challenges.
“I think New York state passed legislation that”™s all-encompassing,” Maier said. “Basically, a same-sex couple in New York state has all the rights and responsibilities of a heterosexual couple in getting married.”
She said that the problems could occur “more so from the federal government and other states. There are lots of different laws in different jurisdictions. We”™re all learning in a way how to handle all of this.”
The most significant issues that may arise include separate property acquired prior to a marriage, joint tax filing, and custody rights over any children, Maier said.
Last year, a New York state maintenance statute was changed, which allows the courts to now consider “the existence and duration of a premarital joint household or a pre-divorce separate household” in the case of divorces, according to the statute.
What the change means is that separate property accumulated by individuals prior to their becoming married “has now become a factor,” Maier said. Add to that the fact that many gay couples have been together for years, and judges may be faced with a conundrum.
“Where you have now a gay couple who have been together for 10 or 15 years and could not marry, I”™m now wondering whether this particular part of the statute will really be considered in the event (of a divorce),” Maier said.
The easiest solution to determining which property was separate prior to a marriage is to sign a prenuptial agreement, Maier said, “so that they can discuss between them how they would want their estate dissolved in the event of a divorce and also just to clarify issues of their separate property before they get married.”
Additionally, cohabitation agreements that were previously formed by gay couples can easily be converted into prenuptial agreements, said Susan Slater-Jansen, a trusts and estates attorney at Kurzman, Eisenberg, Corbin & Lever.
While it is generally common knowledge that gay couples who are married in New York will not be able to file a joint federal tax return, a lesser-known aspect of the new law relates to the custody of children for couples who are married in New York and move out of the state, Maier said.
In cases in which a gay couple has a child where one of the parents is the biological parent of that child, it would be advisable for the non-biological parent to legally adopt the child as well, Maier said.
“If the parties move to another state, that state may not recognize that child as the child of the non-biological parent,” she said. “The problem is when a married couple from New York state moves to another state which does not recognize gay marriage, all sorts of other elements come into play, so they are now just two individuals and that child does not enjoy the same rights as the child of a married couple.”
Slater-Jansen said that legal issues may also arise with the distribution of pension funds and IRA benefits following the death of a spouse for gay couples.
“One of the problems that comes in is federal rights that a gay spouse won”™t be entitled to,” Slater-Jansen said. “For example, in pension plans, a spouse is entitled, depending on the type of plan, to basically a joint survivor annuity”¦ This will not apply for same-sex couples.”
The same holds true for IRAs, she said, which could represent a major problem for the courts.
“There may be a huge problem between the federal laws covering IRAs and New York laws requiring a spouse to get basically a third of them,” she said.
Ultimately, Slater-Jansen said that she thinks changes to the federal Defense of Marriage Act will be necessary.
“It”™s just going to be impossible to keep, especially as more and more states adopt the rights for gay marriage.”
