Same Sex Marriage In North Carolina
In June of 2015, the landmark Supreme Court of the United States case of Obergefell v. Hodges 576 U. S. ____ (2015) held that same sex couples have a fundamental right to marry. This case invalidated laws which excluded same sex couples from civil marriage on the same terms and conditions as opposite sex couples. Obergefell also held that there is no lawful basis for a state to refuse to recognize a lawful same sex marriage which was performed in another state. In looking at the law preventing same sex marriage the court first had to find that marriage is a fundamental right. This was already accomplished in the 1967 case of Loving v. Virginia 388 US 1, 12, 87 S Ct 1817, 18 Led2d 1010 (1967), which invalidated bans on interracial marriage. In that case the Supreme Court held that marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” (page 25) A fundamental right is a right that is so basic and important that it requires the State to apply a standard of review known as “strict scrutiny.” Strict scrutiny is a standard under which a law may exist only if the government can prove that its policy is necessary to achieve a compelling state interest and that the legislation is narrowly tailored to achieve the intended result.
While the ability to marry and the long term rights and obligations which attach due to marriage are now open to all adult couples, whether of the same or opposite sex, there are many issues which will take years to be sorted out due to the various competing fundamental rights. Competing fundamental rights exist when, for example, a woman’s right not to have children is in direct opposition to a man’s right to have children. Unresolved issues include such things as: A same sex marriage couple married legally in State A, moved to State B which did not allow same sex marriage. While in State B the same sex couple splits up but does not divorce because they were never considered married in State B. Later one or both parties marries a member of the opposite sex in State B. Is the second marriage now bigamous? Similarly, since same sex marriage is valid, can both spouses names appear on birth certificates? If an individual, married in State A moves to State B which did not recognize same sex marriage and died intestate prior to Obergefell and the estate is still open, who will now inherit? How do you know whether the deceased wanted intestate succession or intended the spouse to inherit? What if the estate is closed, can it be reopened? These types of questions and similar matters which have far reaching effect are presently undecided in many if not most jurisdictions. However, it is a short term issue as persons affected by the change in law will age out or change matters to conform to the present law.
Some areas of life and law that same sex couples (and all newlyweds regardless of gender) need to review include:
- real estate
- wills and trusts
- credit and banking
- insurance and beneficiaries
- child custody and child support
- equitable distribution
- criminal law (marital privilege)
- health decisions, powers of attorney, health care powers of attorney
- businesses and transfers of businesses between spouses
- retirement accounts
- social security and VA benefits
- income taxes
Take the time to review the various ways in which your life will change with either a marriage or a divorce and be sure that you give attention each such area the attention it deserves.