What about Social Security benefits for my spouse? Unfortunately, the current Social Security standard provides for spousal benefits only if you live in a state that recognizes your marriage (and possibly a civil union with inheritance rights). If you reside in California, your application will be processed and paid. If you live in a state that doesn’t recognize same-sex marriages, the application will be accepted, but not processed. The Social Security Administration is reviewing the rules, but no change has been announced at this time. However, it is very important for retired same-sex couples to file for benefits now, in order to establish a claim date. If the rule or policies change, you can request benefits back to that date. This is true for claims for any other federal benefits that might not be available where you live right now. It is important to make claims as soon as possible, because there are statutes of limitations that may bar some claims after a certain date. We just got married. Now you tell us we have to think about divorce. Why? In the U.S., well over 50% of straight couples’ marriages end in divorce. Same-sex marriages will likely be similar. A dissolution of marriage requires division of assets and real property, and this can be a very expensive, frustrating and acrimonious process if the couple disagree on who is entitled to what. Separate and joint assets have to be identified, spousal support may be required, and a marital settlement agreement reached which must be reviewed and approved by the court. Prudent couples will surely want to plan when they know there is a 50/50 chance they could end up in divorce court. Dissolution of marriage is unfortunate, but the financial part of it doesn’t need to be difficult or stressful. If you are planning marriage now, part of the process should include a pre-marital agreement that clearly defines the assets and property of each person, and whether they are jointly or separately owned. If you are already married (and not living separately or planning divorce at this time), a post-marital agreement will provide the same peace of mind.
This article is part of an ongoing series of articles pertaining to legal issues relevant to the LGBT community, and is intended for general information purposes only – not legal advice. Christopher Heritage is an attorney in Palm Springs and San Diego, who focuses on LGBT estate planning, domestic partnerships, same-sex marriage, probate, trust administration, and bankruptcy. He welcomes questions and comments and can be contacted at 760-325-2020 or at firstname.lastname@example.org
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