How To Guarantee Your Spousal Rights in a Same-Sex Marriage

Alex Garcia

Breaking Down the Legalities of Same-Sex Marriage

On June 26, 2015 the US Supreme Court ruled that same-sex marriage is constitutional. In the years since the landmark ruling, the number of legally married same-sex couples in the US has skyrocketed to more than 560,000. While these marriages come with a slew of rights and protections, there are still many ways in which same-sex spouses are more vulnerable than their heterosexual counterparts.

So, let’s say you and your same-sex partner are getting married. Which rights can you count on? These vary by state, but there are certain marital perks that span the entire country. No matter which state you’re living in, the two of you can:

  • File your taxes jointly
  • Go in on property together—and count on protections in the case of death or separation
  • Visit each other in the hospital, and take family leave while doing so
  • Enjoy maternity/paternity leave
  • Get on each other’s employer-provided medical plans
  • Pursue divorce

Now, the bad news. With our current political system, same-sex couples are always concerned about their rights being altered or taken away. And there are still plenty of rights that are granted only to those in heterosexual marriages. With discrimination still very present, it’s imperative that same-sex spouses take a few simple steps to protect themselves.

Managing Finances Together

First off, let’s talk about finances. We’ve blogged about money management in same-sex relationships previously, and the takeaway was clear: if you’re in a same-sex marriage, you need to go the extra mile in order to achieve peace of mind.

You can start by adding your spouse as the beneficiary on your retirement accounts. This ensures they’ll have access to the money in the case of your death—you can rest easy knowing they’ll be taken care of if the worst happens. This is especially important for same-sex couples, as members of the LGBTQ community statistically make less money than straight individuals, and therefore take longer to save for retirement.

Don’t forget to take out a life insurance policy while you’re looking at your finances. Tomorrow makes the process quick and easy, so you can protect your family without stress. Make sure to add your spouse as the beneficiary when you fill out the form.

Another way to make the most of your finances is to file your taxes together. This can result in a bigger tax return, which you can sock away for a rainy day. If you’ve had a civil union or domestic partnership for years and are finally tying the knot, make sure to go back and amend your taxes from the three previous years. You may be eligible for an additional retroactive return based on your new marital status.

Kids are never cheap, but same-sex couples face staggering financial barriers to expanding their families. If you and your spouse are planning to have kids, you should check to see if your employer-supplied benefits can help cover the costs. Some plans help finance adoption, IVF, or surrogacy.

Bringing Kids into the Mix

Speaking of kids, if you and your partner are planning to expand your family, there are a few others important things to put on your to-do list. If one of you is related to the child biologically and the other isn’t, you’ll want to go through the process of second-parent adoption. Your family knows both of you are your child’s parents, and second-parent adoption guarantees that the courts will see it that way as well, no matter what happens.

It’s also important to appoint someone to become your child’s legal guardian in the event that both you and your spouse are unable to take care of them. This could be a family member or close friend—same-sex couples are more likely than heterosexual couples to elect a friend as their child’s legal guardian, though the most common person appointed to this position across the board is one of the child’s grandmothers.

Getting Your Affairs in Order

There are three documents that will protect your spouse and simplify their life considerably in the event that you are incapacitated, or after your death. These documents are a living will, a last will and testament, and a durable power of attorney. You can create all three documents on the Tomorrow app.

A living will allows you to outline your wishes regarding a plethora of decisions that may need to be made when you are incapable of advocating for yourself. These include decisions regarding:

  • Organ donation
  • Do Not Resuscitate (DNR) orders
  • Life support

Having your living will on hand before the situation arises prevents your spouse from having to make tough decisions without your input.

Your last will and testament outlines the distribution of your assets after you pass. This document allows you to name your spouse and children as beneficiaries, meaning that they can inherit your money and possessions. You will need to name an executor for your will, whose job is to ensure your wishes are carried out. This can be your spouse, or a friend or family member you both trust.

When you create your durable power of attorney, you’ll want to make your spouse the agent. This will give them the right to make decisions on your behalf when you are no longer able to make them yourself. Some of their responsibilities as your agent could include:

  • Paying bills
  • Filing your taxes
  • Authorizing medical care
  • Arranging for a care facility

Let’s Recap

Same-sex marriage is legal in all 50 states, but a marriage certificate isn’t enough to guarantee all of your spousal rights by itself. You can protect your family by:

  • Adding your spouse as the beneficiary on your retirement accounts and life insurance policy
  • Filing your taxes together (and revisiting your past three years’ tax returns if you’re newly married)
  • Looking into employer-provided coverage for family planning costs
  • Going through the process of second-parent adoption
  • Appointing a guardian for your kids, just in case
  • Creating a living will, last will and testament, and durable power of attorney