Unequal Same-Sex Marriage: Legal Protection for NY Couples

New York began recognizing same-sex marriage in 2011. However, matrimony is not enough to protect your rights. Although same-sex couples are granted the same privileges and obligations as heterosexual partners within New York, you do not have equal rights under federal laws or in the states that don’t recognize your marriage. You can counter this disparity through careful planning that includes:

• An advance care directive — If you are fatally injured while visiting another state, medical privacy laws may prevent your spouse from being notified and given the right to make crucial end-of-life care decisions unless you execute a valid living will and power of attorney.

• Estate planning to minimize death taxes — Because the federal laws do not recognize your marriage, the IRS does not allow you to claim the same exemptions and deductions as heterosexual couples, but you can apply certain legal tools to minimize estate tax liability.

• A last will and testament — Although your property is subject to New York estate succession laws, you can avoid probate claims made by other family members by making clear provisions in your last will and testament that bequeath out-of-state assets to your spouse.

• A prenuptial agreement — New York divorce laws apply to all couples equally. However, relocation to another state that does not recognize same-sex marriage could jeopardize your property rights should you later separate from your spouse.

• Joint tenancy interests — Owning real estate as joint tenants protects your interest in the property should you ever divorce or your partner die.

• Parental rights — In New York, you are considered the parent of a child born or adopted during your marriage. Taking steps to maintain the jurisdiction of New York courts during a divorce is essential because some states do not recognize your parental rights.

Your wedding preparations should include a consultation with a knowledgeable family law attorney. Bryan L. Salamone & Associates, P.C. will protect your rights.