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Florida Estate Planning: Same-Sex Marriage Unconstitutional

Posted on: August 20th, 2014
Florida LGBT estate planningRecognition of same-sex marriages is separate on state and federal levels. Although 2013’s groundbreaking Windsor ruling recognized same-sex marriages for federal purposes, of the states our estate planning lawyers serve only New York recognizes these unions. Florida statutes define “marriage” only as a legal union between one man and one woman as husband and wife. The state’s definition of “spouse” applies only to members of such a union.

However, in the summer of 2014, within one month Florida judges ruled in four separate cases that same-sex marriages would be recognized. In one probate case Estate of Bangor, Judge Diana Lewis noted Florida’s anti-gay marriage laws “unnecessarily discriminate” the decedent. She ruled Florida’s gay marriage ban unconstitutional and appointed the surviving spouse as the deceased partner’s personal representative, which was according to the decedent’s wishes in his Will. 

Another case involved the dissolution of a civil union that had been sanctioned in Vermont. In that case, the judge also ruled the Florida ban on same-sex marriage was unconstitutional. Judge Dale Cohen ruled that Florida must recognize the gay legal union and then allow the dissolution.

Earlier cases surfaced in claims that the state's laws violate the due process clause and the equal protection clause of the Fourteenth Amendment of the United States Constitution.

What do these new rulings mean for LGBT couples in Florida? Probate administration, estate matters, family law, and other areas may be addressed by lawmakers as the cases noted above are inconsistent with the state’s statute noted below.
 
Florida Statute Section 741.212:
 
  1. Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.
  2. The state, its agencies, and its political subdivisions may not give effect to any public act, record, or judicial proceeding of any state, territory, possession, or tribe of the United States or of any other jurisdiction, either domestic or foreign, or any other place or location respecting either a marriage or relationship not recognized under subsection (1) or a claim arising from such a marriage or relationship. 

As current law and court cases differ in definition and application of spousal rights, same-sex couples should review powers of attorney, Wills, and other critical documents with a Florida estate planning lawyer. The uncertainty of how laws are currently interpreted could complicate probate and estate matters. To ensure the wishes of each partner are preserved, meet with an estate planning lawyer familiar with LGBT legal issues in order to adequately address them in one’s estate plan.
 
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