Same Sex Couples and Non-Traditional Families
The term “non-traditional family” refers to same sex couples, adult children living with an elderly parent, or heterosexual couples living together who have not married pursuant to the laws of Florida. Often these relationships involve minor children. Because Florida law does not recognize current “common law marriage” or unions between same sex partners, ground rules for resolution of these disputes are more problematic. None the less, these relationships which are often long term emotionally and financially require distributions of real and personal property, as well as asset and debt allocation. If minor children are involved, the problems are even more complex. It is important to seek legal counsel to understand the complexities in a non-traditional family.
The laws are changing and the atmosphere for same sex couples is better than it was when Attorney Diaz first started practicing in this area 20 years ago. Today 32 states have legalized same sex marriage. 18 states ban same sex marriage: 17 by Constitutional Amendment and state law and one by state law only. Florida bans same sex marriage by both the state constitution and state law.
It is important for everyone to think about and formalize relationships with agreements and estate documents but it is especially important for same sex couples to execute documents that outline their desires and wishes because there are no statewide protections under current Florida law.
Four Judges in Florida have ruled that the voter approved ban on same sex marriage is unconstitutional. On July 17, 2014, Monroe County Circuit Judge Luis M. Garcia struck down Florida’s voter-approved ban on same-sex marriage, stating that “it is our country’s proud history to protect the rights of the individual, the rights of the unpopular and the rights of the powerless, even at the cost of offending the majority.” However this ruling only applies to Monroe County (location of the Florida Keys). Although Judge Garcia initially said marriage licenses could be issued beginning on July 22, 2014, an automatic stay was put on the decision when Florida Attorney General Pam Bondi filed notice that the state would appeal. On July 25, Miami-Dade County Circuit Court Judge Sarah Zabel ruled that the state’s gay marriage ban is unconstitutional, stating that “It serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and treat them as second-class citizens, and to deem them unworthy of participation in one of the fundamental institutions of our society.” On Aug. 4, 2014, a third judge, Broward County Circuit Judge Dale C. Cohen, ruled Florida’s same-sex marriage ban unconstitutional because it “discriminates based on sexual orientation, which violates the equal protection clause.” On Aug. 5, 2014, Palm Beach County Circuit Court Judge Diana Lewis became the fourth Florida judge to strike down the ban, but her ruling only applied to the specific circumstances of the case and did not include an order to begin issuing marriage licenses. On Aug. 21, 2014, US District Judge Robert L. Hinkle ruled that the same-sex marriage ban violates the 14th Amendment of the US Constitution, stating: “When observers look back 50 years from now, the arguments supporting Florida’s ban on same-sex marriage [will] seem an obvious pretext for discrimination.”
Although there is a move towards striking down Florida’s ban it still is the law and bears repeating that it is important to have estate documents such as a durable power of attorney, health care surrogate, living will, Last will and Testament, pre-need guardian, and partnership agreements.
Attorney Diaz offers a reduced rate consultation to discuss these issues. Attorney Diaz is also available to speak to your organizations on these important issues. You may contact her here.