As the laws change, we strive to share how they will affect our clients and readers of this blog. Thus, we are pleased to share the following guest post by Florida Bar Board Certified Wills, Trust and Estate Planning Attorney Eric Gurgold.
On June 26, 2015 the Supreme Court of the United States, in Obergefell v. Hodges, Director, Ohio Department of Health, in a five to four opinion ruled to allow same sex marriages in every state. The Court held that the 14th Amendment requires a state to license a marriage between two people of the same sex and to recognize the marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. The Court said the 14th Amendment concepts of due process and equal protection require states to treat same sex couples the same as opposite sex couples with regard to the fundamental right of marriage. The ruling does not apply to civil unions or other arrangements where the couple is not lawfully married.
Effect on Homestead Provisions
In Florida, new estate planning and estate administration considerations will center on Florida’s homestead provisions in Article X, Section 4 of the Florida Constitution and elective share statutes. Additionally, property rights will need to be re-examined to see if a now recognized marriage has changed the character of the property rights.
The Florida Constitution prohibits the devise of homestead property if a decedent was married at the time of his or her death or had minor children. If a marriage was not previously recognized in Florida, but has now become recognized, the ownership of homestead needs to be examined. The moment the marriage became recognized, the burdens and privileges of the Florida homestead laws attached to the homestead property. Although only one spouse may own the property, that spouse is not free to dispose of the property at his or her death if married. A second homestead scenario could arise if only one spouse had minor children and the other spouse had been barred from adoption. That other spouse, now married, may wish to adopt the other spouse’s children. If the adopting spouse was the owner of the homestead property, the Florida prohibition on the disposition and right to devise of homestead applies and the default rule that the surviving spouse receives a life estate and all of the decedent’s children receive a remainder interest in the property is applicable. In the first instance, when the homestead owner is married, but there are no minor children, the disposition may be allowed if the other spouse signs a homestead waiver or post-nuptial agreement. In the latter case, children are involved and the creation of a complex trust may be necessary to address the homestead issues.
Other Property Rights
Couples whose marriages were not recognized but are now recognized should revisit how other property is owned. Prior to the marriage being considered valid, couples may have acquired property in different forms such as tenants in common or joint tenants with right of survivorship. Both forms of ownership are forms of joint tenancies. When property is titled as tenants in common, each party owns one-half of the property; and that one-half interest can be gifted, sold or devised as that owner chooses. When property is titled as joint tenancy with right of survivorship, the same rules apply, except, at death, each spouse’s one-half interest in the property will pass to the surviving spouse. A third type of joint tenancy known as a tenancy by the entireties is only available to married couples. Not all states recognize tenancy by the entireties, but Florida does. The tenancy by the entireties form of ownership is similar to a joint tenancy with right of survivorship. However, the tenancy cannot be broken by the unilateral action of one spouse. Generally, it may only be broken by the consent of both spouses, or through divorce. Most creditors of only one spouse cannot force the division of the property or the sale of the property to pay creditors. Limited creditor protection is offered by tenancy by the entireties property. Additionally, by statute, homestead property owned as a tenancy by the entireties, is excluded from the definition of homestead for purposes of devise and descent and the property will pass to the surviving spouse at the death of the first to die. Couples should make a thorough review of the ownership of the property and determine if any action is to be taken to change how title is held and to check if title has automatically changed to a form that they do not desire.
Retroactive Benefits
What same sex couples are now entitled to and what they will be entitled to in the future is relatively simple. All legally married couples are entitled to the same benefits regardless of gender. The difficult question is, what rights and benefits same sex couples, or the surviving spouse of the same sex couple, are entitled to retroactively. This may be unclear for years to come, but if a same sex couple fears that they have lost rights or benefits they should act now to preserve their right to act, rather than wait for the law to more clearly develop.
About the Author: Eric Gurgold serves as Chair of Henderson Franklin’s Estate Planning and Administration division and is Board Certified in Wills, Trusts & Estates by The Florida Bar. For over twenty-five years, Eric has concentrated his law practice in the areas of estate planning and administration, elder law, probate litigation, title insurance claims related to probate issues, business law and taxation. He assists clients in the preparation of wills, trusts, family limited partnerships, inventories, inheritance and estate tax returns, as well as providing counsel to minimize income and estate taxes.
Eric has been recognized by Florida Super Lawyers® magazine for his work in estate and probate law (2013-2015). He is also AV rated by Martindale Hubbell.
Eric is very active in the community and currently serves as a member of the Grant Advisory Committee and Scholarship Review Committee of the Southwest Florida Community Foundation, the Professional Advisors Network of the Harry Chapin Food Bank of Southwest Florida, and the Planned Giving Committee for Habitat for Humanity Lee and Hendry Counties. He can be reached at eric.gurgold@henlaw.com.