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Post-Obergefell LGBT Rights

Post-Obergefell LGBT Rights. History of Same-Sex Marriage. May 5, 1993 - Hawaii September 21, 1996 - DOMA November 3, 1998 - Hawaii Amends Constitution to Ban September 22, 1999 - California Allows Domestic Partnership July 1, 2000 - Vermont Civil Unions

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Post-Obergefell LGBT Rights

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  1. Post-Obergefell LGBT Rights

  2. History of Same-Sex Marriage • May 5, 1993 - Hawaii • September 21, 1996 - DOMA • November 3, 1998 - Hawaii Amends Constitution to Ban • September 22, 1999 - California Allows Domestic Partnership • July 1, 2000 - Vermont Civil Unions • November 2, 2004 - 11 States pass constitutional amendments to ban same-sex marriage • November 7, 2006 - 7 more states amend constitutions to ban same-sex marriage • May 15, 2008 - California Supreme Court allows • October 10, 2008 - Connecticut Allows • November 4, 2008 - California bans through Proposition 8 • April 3, 2009 - Iowa Supreme Court legalize

  3. April 7, 2009 - Vermont allows • May 6, 2009 - Maine allows • June 3, 2009 - New Hampshire allows • November 3, 2009 - Maine overturns • December 18, 2009 - DC allows • July 8, 2010 - Massachusetts declared DOMA unconstitutional • August 4, 2010 - California’s Proposition 8 declared unconstitutional

  4. February 23, 2011 - Obama administration will no longer defend DOMA • June 24, 2011 - New York allows • November 6, 2012 - Maine, Maryland and Washington allow • November 29, 2012 - Nevada ban upheld • December 7, 2012 - U.S. Supreme Court agrees to hear Windsor v. United States • March 26-27, 2013 - U.S. Supreme Court hears Windsor v. United States and Hollingsworth v. Perry (Prop. 8)

  5. May 2, 2013 - Rhode Island allows • May 7, 2013 - Delaware allows • May 14, 2013 - Minnesota allows • June 26, 2013 - U.S. Supreme Court strikes DOMA portion and dismisses Prop. 8 challenge which legalizes in California • October 21, 2013 - New Jersey allows • November 13, 2013 - Hawaii allows • December 19, 2013 - New Mexico allows

  6. December 20, 2013 - Utah allows (temporarily pending appeals) • 2014 - Oklahoma, Virginia, Texas, Michigan, Arkansa, Idaho, Wisconsin, Utah, Kentucky, Colorado, Florida, Indiana, - All strike down bans, but block marriage while appeals happen • October 2014 U.S. Supreme Court refuses to hear appeals from Utah, Oklahoma, Virginia, Indiana and Wisconsin thereby legalizing • October 2014 - U.S. Court of Appeals for 9th Circuit strikes down bans in Idaho and Nevada. • 2015 - Alabama and Nebraska bans struck but pending appeal • April 28, 2015 - U.S. Supreme Court hears arguments in Obergefell v. Hodges • June 26, 2015 - same-sex marriage legal in all states. • June 26, 2017 - Right to have name on birth certificates if married at time child is born

  7. Post Obergefell

  8. Same-Sex Informal Marriage? • Elements • Man and woman agree to be married • After Agreement lived together in Texas • Represented to others in Texas that they were married OR • Sign declaration of informal marriage

  9. How to Establish? • If marriage wasn’t legal in Texas then how could they have held out as married? • Health insurance - Domestic Partner Benefits • Bank Accounts • Houses purchased • Cars purchased • Social media • Ceremonies

  10. Divorce Issues

  11. Property Issues What’s the character of the property Can the Court divide it? • Children • Establishing Paternity/Maternity • Adoption

  12. Example 1 • Couple established in 2006. • One moves into the house of the other in August of 2006. • In 2007 the house is refinanced into both names and money used to fix house up. • One partner loses job and other supports. • Couple has joint bank accounts and joint credit cards. Cars are purchased in individual names and car insurance individual. Status of the property?

  13. Example 2 Same facts as previous slide but in 2008 couple purchase rings that would be the equivalent of wedding bands and subsequently wore them from that day on? Does this change status?

  14. Example 3 • Same facts but couple has child in 2010. • Non-biological parent adopts child soon after and provides health insurance for the child. • Couple sells house, uses proceeds to buy a new house. Thoughts?

  15. Example 4 • Same facts as previously • Couple formally marries in 2015 • Couple sells house and uses proceeds to pay off debts of both parties • Later purchase another house with remaining funds Community Property or Separate Property?

  16. What about the child? Does non-biological parent have rights?

  17. Example 1 • Couple married in 2015 • Had child in 2016 • Divorce proceedings initiated 2017 • Status of parentage?

  18. Is adoption necessary? Are their other options? What if you did nothing? New appellate cases Obergefell Pavan v. Smith In re A.E. Children

  19. Estate Planning • Creative Planning Pre-Obergefell • Adult Adoptions • Challenges to Wills • Property • Children

  20. Wrongful Death Suits • Same sex marriage opened up more civil suits for Wrongful death

  21. Social Security • Widow/Widower • Entitled to benefits if married at time of death of spouse: • Full benefits when 60 • Can switch to your benefits at 62 if better • Benefits at 50 if disabled and disability started before or within 7 years before spouse passed away • If caring for child 16 (of deceased spouse) or under and did not remarry • Minors • Under 18 and child of deceased you can get benefits • Won’t apply if no parentage action or adoption done

  22. Social Security (2) • Divorced • Married at least 10 years • Now unmarried • 62 or older • Ex-spouse entitled to Social Security or Disability • Benefit is greater than you would receive on your own

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