Should you marry? Watermark’s primer will answer many of your questions.

By : Tom Dyer
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Cliff and Dan fell in love three years ago. They were introduced by friends and had lots in common. Both were in their mid-50s and had previously been married to women; one was divorced, the other a widower. Both had supportive adult children. Both had successful careers and substantial assets, including separate homes. When they came to see me a few months before their wedding date, their playful banter was infectious. We laughed a lot.

Zoe and Kim also consulted with me before their nuptials. Zoe had a daughter, born during a previous relationship that ended badly. Kim was single and settled in a nice suburban home. A year after they met, Kim invited Zoe and her daughter to move in. The three of them were now a family, and their love and happiness were on full display at my office.

Both couples had the same question: “Should we get married?”

Either way, the couples were thrilled that they now had the option. A U.S. District Court ruling made marriage between same-sex couples legal in Florida in January 2015. But marriage equality was tenuous until last June, when the U.S. Supreme Court declared all state bans on same-sex marriage unconstitutional. Whether conducted before or after 2015, and in whatever jurisdiction, any legal marriage between same-sex couples is now recognized in Florida and throughout the nation. Good or bad, that marriage carries with it all the ensuing procedural requirements, protections and responsibilities.

Marriage equality means that our most important loving relationships are now recognized and supported as a matter of law. But because marriage was always outside our grasp, many of us are uncertain as to its ramifications. The impact – on assets, debts, taxes, retirement, inheritance, child custody and separation – can be profound.

“Should we get married?” At its root, it’s a question about compatibility, commitment and love. But thoughtful couples will also want to understand the legal and financial consequences. This primer will answer basic but important questions.

As with all things legal – and all things human – there are layers and exceptions to the guidance provided herein. There are many LGBT-friendly attorneys throughout Tampa Bay and Orlando who can advise you. If you’re thinking about getting married, call one. Trust me – we like working with people who are in love.

How do I get married?
You must be 18 years of age to be married in Florida. You need not be a U.S. citizen, or even resident. But you will need a driver’s license, other valid state ID or a passport.

You can obtain a marriage license at any county clerk’s office for $93.50. It need not be the county in which you reside, nor do you have to be married in the issuing county. Both parties must be present to sign the application under oath. In Florida, marriage licenses have been changed to read ‘spouse’ and ‘spouse’ instead of ‘bride’ and ‘groom.’

The license is valid for 60 days, but you must wait three days after issuance of the license to be married,unless you complete a pre-marital course. A marriage certificate is issued within seven days after the executed license has been returned to the clerk’s office for recording. There is no cost, and additional copies may be obtained for $3.

Ordained clergy, judicial officers and notaries public are qualified to solemnize marriage vows in Florida. Deputy clerks will perform ceremonies at the courthouse during normal business hours for a small fee. Clergy are not required to officiate if it violates their beliefs or the directives of their religion.

Visit hillsclerk.com, pinellasclerk.org and myorangeclerk.com for more info.

How will marriage impact me legally?
When you marry, you become the default legal representative for your spouse. If your spouse becomes incapacitated, you will have authority to make decisions regarding health care and, in most circumstances,termination of life support. And when your spouse dies, you will have default authority to make cremation or burial arrangements and administer your spouse’s estate.

Authorities granted by marriage generally trump any claim made by a member of your spouse’s family of origin. But they do not trump specific written health-care directives or estate directives that have been properly executed by your spouse. For example,your spouse could name her sister or daughter as health care surrogate or estate executor.

For clarity, it is strongly recommended that married couples execute the full range of estate documents: Last Will, Living Will, Designation of Health Care Surrogate, Pre-Need Declaration of Guardian, Durable Power of Attorney and Statement of Authority to Make Funeral Arrangements.

Because the powers granted by a Domestic Partner Registry – or a legal civil union from another state – are lesser in scope, these designations are unnecessary and legally superfluous for married couples.

If your spouse dies without a Last Will, you inherit the entire estate unless your spouse also had lineal descendants unrelated to you (e.g. children from a previous marriage), in which case you inherit 50 percent of the estate. If your spouse disinherits you in a valid Last Will, you may claim a 30 percent “elective share” of the estate. Additional homestead protections entitle you to retain your home, furnishings, a vehicle, and possibly spousal support. Importantly, this elective share can be waived in a pre- or post-nuptial agreement between the spouses, and many couples marrying later in life will wish to do this.

Note that if your spouse completes a Last Will naming you as beneficiary, or a health care directive naming you as designee, either designation is presumed to be revoked upon divorce.

How will marriage impact me financially?
Contrary to popular misconception, in Florida you are not responsible for the debts of your spouse, including in bankruptcy. But there are layers to this analysis. Assets titled in your name alone are insulated from claims against your spouse. Likewise, your jointly owned marital homestead property is protected from claims. But virtually all other jointly held assets (e.g. a bank or investment account) may be vulnerable.

While undistributed, pensions and retirement accounts are also outside the grasp of creditors. The impact of marriage on financial and retirement planning is complex and beyond the scope of this primer. Couples should consult with an accountant, attorney or financial advisor.

Medicaid claims arising from extended nursing or rehabilitative care are different. Assets of the spouse are considered in determining eligibility for a sick or disabled person, although the spouse is entitled to retain a home, car and $119,220. In Florida it may be possible for a spouse to retain additional individually owned assets by signing a “spousal refusal” to pay. This should be accomplished in consultation with a professional.

In most cases (not all, depending on how and when the property was originally purchased), real estate owned jointly by a married couple may be owned as “tenants by the entirety.” This means that if one spouse dies, the survivor automatically acquires sole ownership. And unlike the “joint tenants with rights of survivorship” form of real-estate ownership often used by unmarried gay couples, “tenants by the entirety” protects the property from creditor claims against a single spouse. And in Florida, property other than real estate may be owned as “tenants by the entirety.”

Except in rare circumstances, cohabitating spouses with more than one home will only be able to claim one property tax homestead exemption.

Most group health insurance policies offer benefits for spouses, and policies purchased under the Affordable Care Act offer discounts for families. Spouses are also the default beneficiary for most retirement and life insurance policies.
As a married couple, you can file your income taxes jointly. This is usually advantageous, unless one spouse has numerous itemized deductions or a significantly lower income.

If you’ve been married for at least a year, when your spouse dies you can claim their Social Security retirement benefit if it is greater than your own.

How will marriage impact my family?
When you marry, either or both spouses can request a change of name on the marriage certificate. This certificate is then used to make the change official with Social Security and the Department of Motor Vehicles.

Until just recently, adoption by gays and lesbians was outlawed in Florida. Once it became legal, if you wished to adopt your partner’s children it was necessary to petition the court and endure an expensive and time-consuming home study completed by an adoption agency. Now that marriage is legal, you can adopt your spouse’s children by means of a much simpler step-parent adoption. The filing fee is less than $425, and the process can be completed in several weeks.

Step-parent adoption is strongly encouraged, because otherwise the non-legal, non-biological parent is vulnerable in the event their spouse dies, or if they divorce. Documents such as a Pre-Need Declaration of Guardian for Minor, Co-Parenting Agreement or Pre-Nuptial Agreement can be completed to protect a non-legal parent, but that is second-best when compared to adoption.

Married same-sex couples can also adopt through agencies, and both names will be listed on the amended birth certificate as parents.
However, same-sex spouses face a troublesome vestige of discrimination when a child is born within the marriage. When a child is born to opposite-sex spouses in Florida, the Department of Health automatically lists the husband as the father on the birth certificate unless paternity is contested. But that agency has refused to list same-sex spouses as the second parent. Equality Florida filed a lawsuit in August that is making its way through the court system.

What happens if the marriage ends?
Unavoidably, marriage creates the potential for divorce. This is the painful flip side of marriage equality. In past decades, when same-sex couples split they were mostly left to their own devices to work things out. When they couldn’t, court remedies were cumbersome and expensive. Now, like it or not, decoupling same-sex spouses will have to divorce.

When the parties can agree to the division of property and there are no minor children involved, there is a “simplified dissolution of marriage” procedure that can be completed without the assistance of an attorney and for less than $500. When there are minor children, or there will be alimony or some other enforceable payment plan, divorce can be “uncontested” if the parties can come to an agreement. An expensive and emotionally taxing “contested” divorce arises when the parties can’t agree on division of marital property, marital debt and/or issues involving minor children.

Many same-sex couples enter marriage with an accumulation of assets. As a general rule-of-thumb, each will retain those “non-marital” assets in divorce, as well as any income or exchanges derived from those assets and any non-spousal gifts or inheritances. “Marital” property includes jointly held real and personal property, spousal gifts, and earnings or assets acquired during the marriage. As a starting point, these are apportioned evenly. But equitable claims can be made based on factors such as unequal contribution, sacrifice, waste and the best interests of minor children.

A pre-nuptial agreement should be considered, particularly by couples marrying later in life. The agreement describes the assets of each spouse, and often then renounces any statutory marital claim to those assets upon death or dissolution of marriage. The parties can still provide for each other through joint titling, beneficiary designation or in their Last Will.

In determining child custody, Florida courts encourage consistent and meaningful involvement of both parents. Shared custody, or an arrangement where one parent has primary residential custody and the other has substantial visitation, is most common. If one parent is deficient, contact may be limited or even forbidden. The “best interests of the child” trump every consideration. Child support is determined formulaically based on the incomes of each parent and the time each spends with the children.

Cliff and Dan got married in front of their families in a beautiful ceremony at a local park. Beforehand, they reconsidered their estate planning and executed a pre-nuptial agreement.

Zoe and Kim wanted no fuss. I married them at my office. Kim is in the process of adopting her stepdaughter. When that is finalized, they will execute new estate documents.

This primer casts a spotlight on some of the legal complexities of marriage. It is intended only as a starting place for anyone considering this important step – now or even in a distant, hopeful future. Marrying couples with children and/or separate assets are strongly encouraged to consult with an attorney.

The battle for marriage equality was epic. By all means, take intelligent advantage of the rights that were won. When there is love, commitment and maturity, marriage can be a stabilizing, sustaining legal haven.

The names in this column were changed to protect the privacy of the parties involved.

Tom Dyer is an attorney and partner at Dyer &Blaisdell, PL. He practices primarily in the areas of estate planning and probate. He is the founder of Watermark.

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