The Legalization Of Same-Sex Marriage In The United States

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or same-sex couples living in California, Connecticut, Delaware, District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota (August 2012), New Hampshire, New York, Rhode Island (August 2013), Vermont, and Washington, same-sex marriage is now a reality. If you live in any of these states, you and your partner have a decision to make that same-sex couples have never had to make before: whether marriage is right for you.

Civil unions are available in Colorado, Hawaii, Illinois, and New Jersey, and while they offer almost all of the benefits of marriage, couples in civil unions who are not legally married don’t qualify for federal benefits such as tax benefits or Social Security benefits. Delaware, Rhode Island, Vermont, New Hampshire and Connecticut had civil unions, but with the legalization of same-sex marriage in each of these states, valid civil unions have been (or will be) merged or converted into marriages.

A few other states – Oregon, Nevada, and Wisconsin– offer only domestic partnerships (or something similar,) but they provide limited rights that don't really approximate marriage. Still, for folks living in these and other states, it's never too early to think about what you might do if new relationship options become available where you live. With all major polls now showing that a majority of Americans supports same-sex marriage, the marriage equality battle in many states is just beginning – same-sex marriage bills are coming up for vote in several states, and a few same-sex marriage cases will be decided soon in various state supreme courts. (For up-to-date information, see Same-Sex Marriage: Developments in the Law.)

Factors to Consider

Here are some things to consider as you think about how you want to structure your relationship.

Having children. In most cases, if you have children or hope to raise a family, getting married is probably the right choice. Both partners in a married couple have the same rights and responsibilities to raise and support children of the relationship, and in a divorce, both can seek visitation and custody. If one parent dies, the other one steps right in as the primary legal parent. It's pretty difficult to make these sorts of arrangements absent a legal marriage or a second parent or stepparent adoption. (To learn about second parent or stepparent adoptions, read Nolo's article Gay and Lesbian Adoption and Parenting.)

Jointly owning property. Marriage isn't a prerequisite for owning property together, but if you get married, in most situations your property will be jointly owned regardless of who paid for it. This is the reverse of the presumption that applies to unmarried couples. Getting married may be the most efficient way of establishing a property merger. If keeping things separate is more to your taste, you will have to sign a prenuptial agreement to avoid the joint ownership presumptions of a legal marriage. (To learn more about prenuptial agreements, see the Prenuptial Agreement area of Nolo's website.)

Splitting up property. In many states, each married spouse's earnings are owned by the two of you, and, if the marriage breaks up -- regardless of who's at fault -- you each generally get half of everything you've accumulated. By contrast, if you are unmarried, your property is co-owned only if you have an agreement to that effect, and likewise for debts and obligations. Divorcing spouses are also entitled to seek alimony if the marriage doesn't last, without the need for any explicit contract providing for post-separation support.

Formalities. Every marriage requires a formal ceremony, and every marital separation requires some kind of formal court action -- and quite often the help of a lawyer. Unmarried couples can break up informally, on their own terms.

Inheritance and death taxes. Without a legal marriage, a couple needs to sign several agreements to create even a partial framework of protection in the event of death, and certain
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