Same Sex Marriage and the Laws in Florida

In 2014, Judge Hinkle, a federal court judge out of Florida, found Florida’s ban on same sex marriages was unconstitutional.  He found that marriage is a fundamental right under the Due Process clause and that Florida’s constitutional ban on marriage was unconstitutional.  This opened the door for clerk’s offices throughout the state of Florida to start performing marriage ceremonies which started in January, 2015.

Some Florida counties already have the ability for same sex couples to register as Domestic partnerships.  In Hillsborough County, same sex couples can register as domestic partners and this allows for certain rights which include:

    1. the right to visit the partner in a healthcare facility;
    2. the right to be recognized as a health care surrogate;
    3. the right to make burial decisions;
    4. the right to be notified, like a spouse would be, in the case of an emergency or death;
    5. the right to be designated as pre-need guardian;
    6. the right to visit a correctional facility;
    7. the right to participate in education for domestic partner’s dependents (unless biological parent objects).

What does this mean from a legal standpoint for same sex couples who choose to get married?  One of the common questions I’ve heard is, if we were married in another state, do we now need to get married in Florida?  The answer to that questions is “no”.  It is important to note that, there are federal rights that same sex couples can now take advantage of, however, if you are in a civil union or domestic partnership, you cannot take advantage of these federal benefits.

What do these federal benefits include?

1.The ability to be named as a beneficiary spouse under an ERISA plan (i.e., 401(k), pension plans,etc.)

2.Receive federal health insurance on same sex partner’s plan, purchase long term care insurance and life insurance at group rates, and be entitled to be designated as a beneficiary of a pension or annuity;

3.Receive active military benefits such as housing allowance, right to live off base, TRICARE and joint duty assignments if both are enrolled in the military;

4.Tax benefits for federal tax purposes that heterosexual couples receive (credits, deductions, gift exclusions);

5.Employers having health plans are no longer allowed to deduct income taxes on the portion of the salary that pays the spouse’s health insurance premium;

6.Medicare Advantage plans will now pay for the same sex couple to reside in the same nursing home.

What about Social Security benefits and Medicaid for same sex couples?  That is a little trickier.  In most cases, it is going to depend on the laws of the state of the persons receiving social security and Medicare benefits.  If you are not sure, the best thing to do is to go the Social Security administration website and apply for benefits.

It is also important to know your inheritance rights as a spouse.  For instance, spouses of a decedent have certain homestead, elective share and exempt property rights.  Now that Florida recognizes same sex marriages, knowing your rights after the death of your loved one is very important, especially if your loved one dies without having a Last Will and Testament.   If a spouse is not on title to the homestead, it is important to know whether the decedent died with or without a Will.  This can affect the surviving spouse’s rights.  It is also important to note that same sex spouses can now hold title to property as “tenancy by the entireties” (or “TBE”) which is only allowed by married couples – this means that, if a couple holds property as TBE, that a creditor of one spouse cannot come after assets that are held in that manner by both spouses.  Also, if a couple holds property as TBE, on the death of the first spouse, the surviving spouse automatically holds a 100% interest in the property.

I encourage all same sex couples to speak with an estate planning attorney about your rights and the proper way to handle your estate planning documents.  And keep checking in because, as rights of same sex couples becomes clearer, I will be reporting all the changes and updates here!  If you have any questions about estate planning, please call the Law Offices of Laurie E. Ohall, P.A. to set up a free 15 minute phone consultation. Contact Ms. Ohall today if you need estate planningelder lawprobate or guardianship assistance.