Same-Sex Couples Need Prenups before Marriage

July 15, 2015 | Legal Perspective, Prenuptial Agreements

Icon for author Brian Vertz Brian Vertz

Same-sex couples who are getting married after spending many years in committed relationships may need prenuptial agreements even more than new couples who are just starting out.  That’s the conclusion I’ve reached after contemplating the ramifications of the U.S. Supreme Court’s recent decision in Obergefell v. Hodges, ___ U.S. ____ (June 26, 2015).

In Obergefell, the U.S. Supreme Court held that all Americans have a fundamental right, protected by the U.S. Constitution, to be married.  The opinion of Justice Anthony Kennedy, writing for a 5-4 majority of the Court, was simple and elegant because it concentrated on what we all agree upon.  It didn’t waste time chewing on disagreements. We all agree that marriage and family are the foundations of society. The right to marry is a fundamental right guaranteed by the U.S. Constitution, and every state must recognize a legally valid marriage issued by another state.

When a fundamental constitutional right is restricted for some people by a legislative or executive act, there must be a compelling reason and the restriction must be narrowly tailored.  Measured by this standard, the Defense of Marriage Act (or DOMA) did not pass muster.

So why should same-sex couples who have been involved for years in committed relationships get prenups before they marry? They need prenups to ensure that their entire relationships, not just the post-June 26, 2015 portion, will be considered by the courts for estate planning, divorce, tax and other legal reasons.  When couples marry without a prenup, the courts might not recognize the true duration of their relationship or the property they acquired before they were officially married.  It might be difficult for our courts to reach an equitable result in a divorce, estate or tax dispute without recognizing the entire duration of the relationship.

Long-term couples who are just now getting married may also need to update their wills, property deeds, insurance beneficiaries, and other legal documents.  And, they may need to untangle trusts, civil unions, adoptions, or other legal mechanisms that they were forced to use before marriage became a legal possibility.  My law firm has handled these issues and is capable of addressing the needs of same-sex couples who are getting married.  Call me today before you say “I do.”

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