How Does the DOMA Decision Affect Floridians? Three Local Attorneys Weigh In
On June 26, 2013, the Supreme Court of the United States of America (SCOTUS) laid new groundwork for same sex couples’ equality in California and the rest of the United States.
In California, the Proposition 8-ball bounced back to the lower courts where it had been adjudicated unconstitutional. The Ninth District Court of Appeals allowed marriages to commence immediately although opponents have vowed to appeal and continue their efforts to deny gay Californians their rights.
The same day, the SCOTUS overturned Section II of the Defense of Marriage Act (DOMA) which essentially stated that the federal government of the United States recognized only marriages between one man and one woman. This, said the Court, is unconstitutional because it takes away rights from a class of people without demonstrable cause.
The Court did not rule on the constitutionality of Section III of DOMA which allows states to ignore same-sex marriages performed in other states and which will now create even more confusion for a while about what is protected where.
SFGN caught up with three local attorneys who specialize in helping gay (and straight) couples take legal steps to protect themselves and each other in a state that doesn’t recognize their existence. Gregory Kabel, Shawn Newman and Jeffrey Selzer found time in their busy schedules to share their thoughts on what has changed and what remains the same.
"Basically," said Selzer, "not a lot has changed in Florida and other states where same-sex marriages are not recognized. You still need a domestic partnership agreement to visit a partner in the hospital. Then there’s the living will, health care power of attorney, financial power of attorney, and a specific last will and testament so you can direct your assets where you want them to go."
"If you’re a heterosexual married couple in Florida you may not need a will," Kabel added. "Your assets are transferred 100 percent to the surviving spouse unless one of the spouses has children from a previous relationship in which case the assets are divided between the surviving spouse and descendants."
"You know those thousand plus benefits we talk about?" asked Newman. "Well, they are not a neat package and they are administered by various agencies in the federal government as well as the state governments. Some of the connections are legislated, some were created administratively, and some just happened that way."
The other attorneys concurred with this and Kabel noted that the IRS and Social Security "Both look to the state of residence to see if you’re married, so even if you’re married in Massachusetts, for example, if you live in Florida, you’re single for these two federal agencies, too."
"President Obama can make some changes by executive order, although he seems reluctant to do so," Newman said. "Other changes will require the legislature. "
Newman shared that one couple with whom he has worked have sold their property in Florida, quit their jobs and are moving to California where they will be legally recognized by both state and federal laws. "It sounds drastic," said Newman. "But there’s no other way to guarantee protections."
"We’re a mobile society," Kabel added. "But these laws will tend to change mobility, and may change the dynamic of business and industry."
"You have to consider all aspects," Newman said. "Living in Florida has certain tax benefits, including no income tax and a homestead exemption that can have major impact on a decision to move."
"Then there’s divorce," Selzer noted. "Unless the couple moves to a state that recognizes same-sex marriage and establishes residency, most commonly 6 months to a year, they cannot get divorced legally. California, Vermont and Washington, D.C. have no residency requirement as of now."
"The lack of clarity around divorce and the residency requirements should cause people to pause before dashing off to one of the thirteen states to get married," Newman said. "You may not be able to afford to relocate for six or more months at a later date."
All three attorneys agreed that these issues will probably be back in front of the SCOTUS within three to five years.
They also agreed that this is not the time to sit back and do nothing waiting for the next round of court cases. If anything, it is more important than ever to review joint and single finances, future hopes and plans, and the steps needed to get there.