Up until recently, with the growing tide of states recognizing same sex marriages and the likelihood that the Supreme Court will in the next year resolve the issue completely, same sex couples did not have to think about prenuptial agreements because they already knew they had limited recognition for any potential marriage. But now that the landscape has changed, same sex couples need to think seriously about prenuptial agreements and how they might need to address matters differently than heterosexual couples.
First, same sex couples likely have been together as partners for a much longer period of time than a typical heterosexual couple. Because they may have years living together as a couple, they probably have purchased property together, perhaps supported one or both partners through school, and entered other types of financial arrangements. With so much intermingling of assets, it would be very important to determine how the couple wants to deal with these assets before laws governing divorce would apply. For example, the couple may live in a house titled in the name of only one partner but funded by contributions from both parties. Should the parties never title the house jointly, the asset would be classified as the separate property of the owner spouse and not subject to division. The non-owner spouse can protect the premarital contribution by placing that in a prenuptial agreement. As another example, spouses have a claim to the marital portion of retirement benefits. If the couple has lived together for fifteen years before marriage, one or both spouses would want to protect a claim to the retirement benefits of the other, which can only happen through a premarital agreement.
Second, same sex couples may have children together but the legal relationship of each parent to the child may be murky because of the absence of one partner on the birth certificate and/or the absence of any biological tie to the child. If the couple had not previously formalized a relationship with both partners through adoption or paternity/maternity suits, a marital union will not clarify the rights of the parties to the children born before the marriage. By the time that couple would divorce, one partner may no longer wish to have the other partner parent the child. To eliminate taking advantage of such a legal loophole, the couple should reduce to writing in a prenuptial agreement their parenting wishes and state an intention to formalize that relationship through adoption after marriage.
Finally, we still do not have uniformity with regard to same sex marriage and same sex divorce. Until we reach that point, the prenuptial agreement may be the only protection parties have with regard to issues of property, custody and support. Provisions should be made to cover contingencies for a divorce in a state that does not recognize the marriage. Also, in the event of a negative Supreme Court ruling that leaves these matters purely to the states, the prenuptial agreement will at least allow the parties to have some contractual protection with regard to their assets.
As we move from a state of non-recognition to a majority of states recognizing same sex marriage, same sex couples thinking of marriage should certainly use the prenuptial agreement as a means to protect themselves in the patchwork transition to uniform recognition.
If you have questions about prenuptial agreements and same sex marriage, contact us – we can help.