Prior to May 20th, 2014, the laws in Pennsylvania regarding same-sex marriages were as follows: 1) same sex couples could not wed under 23 Pa. C.S. §1102; and 2) legal marriages between same sex couples that occurred in another state were not recognized under 23 P.a. C.S. §1704.
However, on May 20th, 2014, these Marriage Laws were found to violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution in the case of Whitewood v. Wolf. Consequently, Judge John Jones III of the Unites States District Court issued an order permanently enjoining the enforcement of the aforementioned Marriage Laws. Pennsylvania Governor Tom Corbett announced that he will not appeal Judge Jones’ decision. This makes Pennsylvania the 19th state to legally recognize same-sex marriage.
What does this mean for same-sex couples who chose to exercise their right to marry?
Tax Benefits: Same-sex married couples will now receive state tax benefits given to married couples. More specifically, same-sex couples will now be given the benefit of tax-advantaged estate and gift planning. Prior to the Whitewood decision, same-sex couples were forced to file as single on their state tax returns, even if they were legally married in another state.
Divorce: Same-sex married couples can now obtain a divorce in Pennsylvania, whether they were legally married within the state or in another jurisdiction. Similarly, same-sex couples are also entitled to alimony and its deductibility. Under the previous Marriage Laws, same-sex couples that were legally married in another jurisdiction could not legally end that marriage in Pennsylvania.
Prenuptial Agreements: Same-sex couples may also want to consider consulting an attorney prior to getting married to help them draft a prenuptial agreement. The reason for this is that if no agreement exists between the unmarried parties regarding the sharing of income and expenses or the manner in which the parties intend to hold property, then the court does not have authority to intervene. Therefore, any property acquired by either partner prior to the marriage is not considered marital property for equitable distribution purposes. A prenuptial agreement would be necessary to address the assets acquired prior to the marriage, and how they would be distributed in the event that the parties terminate their relationship.
Earnings and Retirement Benefits: If one or both of the married partners is employed and receiving an income, retirement benefits, and/or a pension plan, then money earned during the marriage is now automatically considered marital property subject to equitable distribution. Prior to the Whitewood decision, if same-sex couples wanted to share title of a partner’s income and have control over what happens to money in the event that the relationship is terminated, the couple would have to create a contractual agreement addressing these issues.
Property Ownership: If married same-sex couples own property that is titled as “joint tenants with right of survivorship,” then, upon marriage, that property is now presumed to be a tenancy by the entireties. Additionally, a transfer of property titled in the name of one of the spouses to joint names also creates a tenancy by the entireties. Household goods purchased by either party are also presumed to be entireties property.
Tenancy by the entireties is a method of ownership that is only available to married couples. Tenancy in the entirety provides that the partners own the entire estate jointly, and do not have the ability to act individually as an agent of the property. This is different than joint tenancy because joint tenants do have the ability to act as individual agents of the property.
A tenancy by the entireties terminates at the death of one of the parties, or upon the issuance of a divorce decree. In the event that one of the parties dies, the survivor will be entitled to the entire property by operation of law. However, upon a divorce of the parties, the parties are tile is changed to “tenants in common,” with no right of survivorship between the parties. Therefore, if the parties divorce, then when one party dies that party’s interest passed to his/her heirs or devisees.
Medical Benefits: Prior to the legalization of same-sex marriage, a partner in a same-sex relationship could not be considered a qualifying dependant of his/her partner’s employer’s health insurance for because no legal relationship existed. Now, if a same-sex couple decides to marry, then the non-employee spouse will be considered a qualifying-dependant for health insurance purposes.
Social Security: Upon reaching age 62, married same-sex partners are now entitled to their spouse’s Social Security benefit, equal to 50% of the worker’s retirement benefit. Divorced spouses aged 62 and older that were married at least 10 years and divorced for at least 2 years are also entitled to receive their ex-spouse’s benefit.
Our experienced family lawyers take the time to fully understand the financial and emotional complexities that can be involved in separating two lives. We offer the patience and resources to effectively guide clients through a divorce, addressing all the challenges they may face in moving forward with their lives. To learn more about how we can help protect your rights and interests in a complex divorce, contact the Pennsylvania divorce attorneys at Vetrano | Vetrano & Feinman LLC.