Wednesday, August 17, 2005


So Much for Protecting Marriage

More homes in U.S. go solo

In a few years many of the citizens in states that have voted to ban any recognition of legal relationships other than 'marriage between a man and a woman' are going to wake up and find themselves screwed. Oh, I don't expect that a bunch of people are going to 'go gay' as feared by the Dobson/Robertson crowd...rather many heterosexual couples who are living together long term, or widowed Seniors who may want to share their lives (but if they remarry may loose pension or health benefits from their deceased spouse) are going to find themselves between a rock and a hard a committed long term relationship, but as a matter of law, legal strangers.

That's what's ironic about this whole debate on gay marriage/domestic partnerships, that in the end, the folks who will be the most impacted by these numerous referenda will be straight couples. Gay men and women are generally fairly legal savvy about their relationships and execute numerous legal documents to protect their interests vis-a-vi each other. Such issues as inheritance, hospital visitation and such.

The Problem of Legal Strangers:

Take for example home ownership. Let's say that Josh and Becky have been living together for some 20 odd years. They share a house and own it jointly. Becky looks crossed eyed at someone in the grocery store and they sue Becky for giving them the evil eye..and win. Now if Becky and Josh were married, they'd own their house as tenants in their entirety. That means that neither owns the house by themselves, and they each don't own half. Together as a union they own the house in it entirety and that ownership is not severable. That means that the person who sued Becky couldn't get the house as Becky doesn't own it...BeckyJosh owns it. Not the best example, but you get the drift.

Inheritance can get kind of crazy in these situations as well. If Josh and Becky are married and own the house, when one party dies, the other becomes the sole owner of the house...automatically. Better yet, there are no tax consequences for the survivor that absorbs the deceased spouses share of the house. That's not the case for unmarried couples. They cannot own a house as tenants in the entirety...but as joint tenants. Joint tenancy means that each persons share of the house is severable. The result, if sued that share may be seized (Josh now owns the house with the crazy lady from the grocery store). In the event of death it gets more complicated. If Josh left his share of the house to Becky, Becky gets it, but must pay taxes on the transfer of wealth. If Josh died without a will, then the House goes into probate...and Becky is screwed. Most states probate laws are kind of like the laws of succession for the queen of England. They follow what's called lines of consanguinity. If the couple has kids, then the kids inherit joshes share. No kids, then the share of the house goes to the parents, if alive. If the parents aren't alive, then the house goes to any siblings that may be living. No siblings...then the state statutes usually have the property move up the family tree and out to cousins, aunts uncles, second cousins and such. Unless Becky is some distant relative of Josh (hey don't knock it, FDR and Eleanor were first cousins- she didn't even have to change her name!) then she's out of the loop. The house could very well go to someone who never knew Josh.

The same thing goes for Josh visiting Becky at the Hospital. Regardless of how long they've been together, Josh is not 'family' and thus cannot visit his love in the ICU.

If you really think about various horror stories it gets really interesting...(in lawyer speak such imagining is often called the 'parade of horribles'). Let's say take the example of Becky and Edith. They're a married same sex couple in Massachusetts. One summer day they are hanging out in a small town that straddles the border between Massachusetts and New Hampshire. In fact, the state line runs down the middle of main street. They've just picked up some frozen yogurt and are crossing the street (in the cross walk) to visit an antique shop across they way. They each have one foot in Mass. and one foot in NH. Suddenly out of nowhere and drunk driver comes speeding down main street, straddling the median.

Edith manages to jump out of the way, but Becky is hit. . . she falls to the ground and dies. The survivor in a traditionally married couple has a clear case of wrongful death against the drunk driver. But with Edith and Becky it's a bit more complicated. We must look at three scenarios.

Scenario One: Becky falls forward into NH.

In this scenario, Edith is out of luck. As her relationship is not recognized in NH, her and Becky are legal strangers and Edith probably can't sue the driver for the wrongful death of Becky. The driver may be prosecuted under criminal law, but Edith has no wrongful death claim or a claim for loss of companionship or consortium.

Scenario Two: Becky falls backward into Massachusetts.

Edith lucks out. Since Massachusetts has granted the couple legal rights for their commitment, Becky has full access to seek justice for her loss.

Scenario Three:
Becky is thrown forward and dies on the street's
median, half in Mass. and half in NH.

I'll save this one for professors to torture their family law students
with. Again, you get the picture.

You can think of other ways to complicate this hypothetical. What if Becky were pregnant?

The various permutations are what makes the law fascinating if you ask me. The Constitution, and the courts, endeavor to make sure that there is equal justice under the law. But increasingly, for a growing number of folks, that won't be the case. You could replace Becky and Edith with Fern and Herman and move them to Lake Tahoe. California recognizes domestic partnerships between opposite sex couples if one party is over 62. (This is to encourage widowed seniors to enter committed relationship where marriage would mean loss of a pension or medical coverage). It's getting interesting...and despite what the so-called Christian right is saying, it's not a conspiracy against marriage.

In the end, when the current patchwork of laws regarding these relationships comes crashing down, my bet is that it will have nothing to do with a same-sex couple, but with, perhaps, a widow and a widower who want to care for each other, but can't remarry as they'd lose their health insurance and pension from their deceased spouse.

How is encouraging two people to care for each other, and granting them legal rights in exchange for that responsibility a threat to anyone? In fact, isn't that a conservative position?

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