Married? Know your legal status

With the Holidays around the corner, we hope that newly married same-sex couples have extra family to celebrate with this year. While marriage is certainly an excellent means to share family, it should also be remembered that the status of marriage has other “sharing” components to it as well.

When a couple becomes married, substantive legal implications are automatically attached to the union. These implications can affect a couple’s future financial position and often affect property that is owned either jointly or separately.

For example, under Oklahoma law, one spouse cannot disinherit the other by will or trust or in any other way, unless a valid prenuptial agreement was made. This is true even if the couple is in the process of divorcing when one of them dies. Note that if a couple was legally married in another state that allowed same-sex marriage before Oklahoma did, the marital date is the one in which the marriage first occurred legally.

When a couple divorces, “marital property” is subject to division. “Marital property” is usually all property acquired during marriage. Property owned solely by one of them before marriage or acquired by one of them during marriage, such as an inheritance, may remain separate property, not subject to division. However, if the separate property is “commingled” during the marriage, it may become “marital property.”

For instance, if one of the spouses owned a rental house before marriage but thereafter both spouses contributed money and/or sweat equity to repairing, remodeling, or maintaining the house, the other spouse will probably be entitled to a portion of any increase in value of the property during the marriage resulting from their contributions. Also, one of the spouses may be entitled to alimony from the other depending on their respective earning capacities.

Each spouse also has rights in the house where the couple lives because the house is the homestead for both of them. Typically, when one spouse dies, the other is entitled to a life estate in the homestead.

After all, death is inevitable and divorces happen. It is good to know and worth researching certain information. For example, a spouse is automatically a beneficiary of the deceased spouse’s 401k, unless the surviving spouse explicitly signed and waived his or her right to any 401k benefits. Conversely, if an individual has an Individual Retirement Account (IRA), that individual must specifically name any and all desired beneficiaries, including his or her spouse, as a beneficiary.

“Same-sex divorce” carries with it all of the implications and complications of “hererosexual divorce” and, perhaps, then some. This is especially true if children are involved, and is affected by the method used to produce children (adoption, artificial insemination, surrogacy, etc.). But, happily, legalization of marriage should open up adoption to same-sex couples.

Know your status. It is important to talk with your spouse about the legal implications that could affect you and your families. Protect yourselves and seek legal counsel if necessary. And whatever you do, please enjoy the Holidays!

By Sally Gilbert, Legal Columnist

The Gayly – December 7, 2014 @ 11:35am