With the passage of the Defense of Marriage Act (DOMA), the United States government denied legal recognition on a federal level of any same-sex marriages which might be legal in certain states. As of December 1, 2008, Massachusetts and Connecticut allow same sex marriage. California, which has permitted same sex marriage since June 2008, is in the midst of a legal battle to determine whether it will continue to allow same sex marriages.
And although some states do have laws in place to recognize same sex marriage, same sex unions, or domestic partnership, homosexual couples cannot obtain the traditional rights and benefits normally afforded to married couples by the federal government. In addition, other states are not required to acknowledge the “legalized union” from its sister-state, making it difficult for same-sex couples to relocate to other parts of the country.
This presents some unique issues when dealing with inheritance matters and rights of the spouse. In a heterosexual marriage, the legal spouse has the right to speak for their spouse on matters such as medical treatment in the event that the spouse is unable to voice their desires. In a homosexual marriage however, the marriage is not considered legal and therefore such rights do not pass to the spouse. In this instance, it is quite feasible that other family members could overrule the wishes of the spouse and take control of the medical treatment.
Likewise, property and other assets would not pass to the spouse automatically at death, but would instead be distributed among the deceased’s family members.
Because of this, it becomes imperative that same-sex couples (who are not legally married and residing in a state which recognizes same sex marriage) establish legal documents to outline their wishes and desires. A power of attorney, a will and other similar documents can ensure that the surviving spouse is taken care of and empowered with the rights a heterosexual spouse would have.