Why marriage makes legal difference

Jacksonville law school professor outlines benefits, protection of marriage

JACKSONVILLE, Fla. – As same-sex couples all over Florida celebrate their ability to marry, it's far more than a moral and emotional victory. There's another side to this change in the law that has to do with the business of marriage.

For Susan and Vicki Karst-Smith, the couple whose same-sex marriage was officially the first in Duval County, their wedding was more than an expression of their commitment. Their marriage also secures financial protection under the law -- something they haven't had in their 13 years together.

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"It really turns into being a financial thing, Social Security and all that," said Vicki Karst-Smith. "More than just a love commitment, because we've already made that."

Jennifer and Cassie Royael have always worried what would happen if one of them got hurt or sick. 

"You cannot have access to your loved one because you're not legally bound, no matter how long you've been together or the life that you shared together," said Royael. "So that's one of the main things... just in case something were to happen, to be able to be there."

"The main benefits really come in the area of government benefits, taxation, asset protection and employment rights," said Rod Sullivan, from the Coastal School of Law.

Sullivan said the pressure these changes will put on the public and private sector will be substantial. In order for benefits like Social Security to catch up, there is going to have to be a lot of legal work.

Add to that divorce and child custody issues, and Sullivan said the system will eventually adjust, and so will our taxes.

"Nobody's discussed that part of it, and I think the bill is going to come due sometime in the future. We just don't know how much it's going to be," Sullivan said. "This is going to create a lot of litigation, there's no question about it."

Rhonda Peoples-Waters, a local attorney said judges and lawyers have been talking about how this would work-- particularly in child custody cases where often gender would play a role. 

"Gender would certainly be an issue when thinking about the best interest of the child. For example if you had a judge dealing with sons unruly and uncontrollable, judge may consider placing those sons with a father who's more able to control them. Well certainly a same sex marriages you won't have that circumstance," said Peoples-Waters.

This had been an issue in Florida before same sex unions were legalized. That was due to same-sex couples married in other states fought for the right to divorce in Florida. Now, divorce is not the only issue. 

"I mean, the whole system is based upon what is now an outdated concept of marriage. The idea of a man and a woman coming together where one raises children and the other works," said Sullivan.

Sullivan compiled a list of many of the marriage benefits same-sex couples will now be able to share: everything regrading 401Ks to estate taxes. 

Federal Benefits conferred by marriage

  • Social Security spousal benefits (even if spouse worked -- one half of spouses benefits)
  • Old age, survivors and disability insurance
  • OASDI program (Social Security)
  • Right to payments based on the marriage, rather than on his or her own earnings
  • Pension benefits
  • Capital gains on sale of home
  • Estate tax exemption
  • Taxation of 401(k) benefits upon death
  • Family medical leave act
  • Continued health coverage (COBRA)
  • Obtaining immigration and residency benefits for non-citizen spouse
  • Veterans' and military benefits for spouses
  • Joint filing for bankruptcy
  • Federal $100,000 to spouse of any public safety officer killed in the line of duty
  • Renewal and termination rights to spouse's copyrights on death of spouse
  • National Affordable Housing program


State benefits conferred 

  • Steve laws of interstate succession: one-half of the interstate estate
  • Homestead exemption
  • Adoption
  • Equitable division of property upon divorce
  • Alimony
  • Wages can be garnished for alimony at maximum rate of 60 percent (instead of normal 25 percent limit)
  • Division of property upon divorce
  • Suing for wrongful death
  • Marital communication privilege (you can't be compelled to testify against the spouse)
  • Domestic violence intervention
  • Right to change surname without court order
  • Survivor benefits under workers' compensation acts
  • Line of duty benefits
  • Financial disclosure/conflict-of-interest rules for many government and government-related jobs


Governmental benefits

  • Social Security (benefits based upon marriage, not income)
  • Veteran's benefits based upon marriage
  • Internment benefits in national cemeteries, opening and closing of grave, perpetual care, government headstone or marker, burial flag and Presidential Memorial Certificate at no cost to the family.
  • Line of duty benefits

Taxation

179 provisions of the tax code depend upon marriage


Employment rights

  • Health benefits
  • Family Medical Leave Act
  • Workers compensation benefits
  • Anti-nepotism policies


Asset protection

  • Homestead exemptions
  • Tenancies of the entireties
  • Joint filing of bankruptcy

About the Authors:

Storytelling is at the heart of what Alicia loves most about television news and she is thrilled to be a part of the News4Jax team.

Scott is a multi-Emmy Award Winning Anchor and Reporter, who also hosts the “Going Ringside With The Local Station” Podcast. Scott has been a journalist for 25 years, covering stories including six presidential elections, multiple space shuttle launches and dozens of high-profile murder trials.