Planning For Same Sex Marriages

Marriage equality in California is only a week away and thousands of same sex couples are planning to race to pick up marriage licenses. Reports are that in the Palm Springs area, the Riverside County Registrar’s office has filled appointments for 500 couples an hour during the first days after June 17, 2008.

We’ve been waiting our entire lives for equality, so the rush to exercise our new marriage rights is understandable. But couples may wish to hold off on getting married for a few weeks in order to make legal plans about their marriages and to be sure they understand just how marriage will affect them.

For one thing, California is a community property state. Generally, that means the state will assign each spouse fifty percent of the couples' assets earned and debts incurred during marriage to each spouse. Special care needs to be taken to keep “separate property” from becoming part of the marital estate if that is the desire of the couple.

Couples can alter community property laws if they do so via contract before getting married by using a premarital agreement – also known as a prenuptial agreement. These are legal and enforceable in California and in many other states but strict rules must be followed if they are to be valid.

What would couples wish to address in a premarital agreement? For starters, a same gender couple might want to specify that California courts will address any future marital issues involving the couple. Imagine two men living in Palm Springs get married this month. Two years from now, they move to Texas. Ten years from now, they want to divorce.

If Texas still refuses to recognize same gender marriage in 2018, the couple needs to be sure a California court can adjudicate their marriage dissolution. Laws already exist suggesting that would be the case, but a premarital agreement would ensure the right will exist.

A premarital agreement might address a whole range of federal rights that currently are not available to same gender spouses. And the premarital agreement might address what happens to those rights when the Defense of Marriage Act is finally repealed.

Of course, same gender spouses can use premarital agreements to plan for the same things as opposite gender spouses. In addition to property rights, couples may wish to address what happens upon a divorce or upon the death of one or both spouses. This also naturally leads to a discussion of estate planning questions that should be visited or re-visited upon marriage.

California law requires a premarital agreement be entered into at least seven days prior to marriage – and the greater amount of time between executing the agreement and the wedding, the better. So contact a family law or trust and estates lawyer to discuss what marriage really means and whether you would benefit from a premarital agreement.

If you just can’t wait to get married, you might be able to enter into a post-nuptial agreement. These agreements, however, are not always enforceable. So your best bet is to talk with an attorney before you get married.

And, finally, let’s all be sure to celebrate marriage equality with contributions to defeat the California Constitutional Initiative on the ballot this November that would end marriage equality. Go to EqualityforAll.com and donate to support the right of all couples to marry.