Does Same Sex Marriage mean Previous Legal Arrangements are Void?

For several decades at least, same sex couples have sought ways to legalize shared assets, custody and survivor benefits. This has taken the form of a multitude of legal arrangements whose status, if a couple chooses to become legally married, may be in doubt.

The simple answer is: nobody yet knows whether the new law voids these previous legal documents. Last week’s decision by the Supreme Court legalizing same sex marriage in all 50 states marked the beginning of what might be a long journey as courts seek to standardize treatment of a previously excluded group under marital law.

I’ve been thinking of ways to help clients navigate this unknown territory.

Documents spelling out distribution of assets if the couple part ways, for instance, may be completely void, as new marriages would be subject to the laws of the state where they take place.

Definitions of the date marital assets begin accruing is likely to become a highly volatile area of the law. How do you decide this point in time – the date a couple first moved in together? The date they got married in a different state? The date they got married in Pennsylvania? The date of the Supreme Court decision? You can see there are many unplowed legal minefields here.

Wills and adoptions may be least affected, as these legal documents are generally not subject to issues of married or single status.

The area of child custody and visitation rights, however, might get more complicated as same sex partners gain rights formerly available only to second marriage spouses.

My point is that, with the exception of prenuptial agreements, which will now be available to same sex couples, much of the legal meaning of the Court’s ruling will take years to sort.