women holding handsToday, in a historic 5-4 decision, the United States Supreme Court ruled that same sex marriage is a right granted by the Constitution.  Prior to today, the Supreme Court had side stepped the issue which emboldened 36 of the 50 states to pass legislation legalizing same sex marriage.

Justice Kennedy wrote in his majority opinion,

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Chief Justice Roberts disagreed in his dissenting opinion that the issue had anything to do with the Constitution.  He wrote:

“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’ Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”

While debates will continue, the law of the land is finally settled on the issue of same sex marriage.  Now, gay and lesbian couples will have equal rights when it comes to marriage and will enjoy the protections of marital property, tax filing status and death benefits just like traditional marriages.

With that comes a whole new discussion and a legal sea change when it comes to estate planning, as well as property division and child rearing in the event of a break-up.  Same sex couples will now contemplate whether, for example, a prenuptial agreement is appropriate, as property will not be divided based on title any more if it is acquired during the marriage with marital money or in exchange for marital assets.  The Florida Statutes with regard to Equitable Distribution, Alimony, and Child Custody and Support will be applied for all dissolution of all marriages within the State of Florida.

If you have a question about same sex marriage, or would like a consult on pre marriage planning or estate planning, contact us and put our experience to work for you.