One of the difficult challenges that all attorneys face is how to advise clients when a particular issue or area of the law is unsettled. It is imperative to recognize what the current state of the law is, anticipate where changes in the law may be headed, and educate the client as to these issues and also to manage the client’s expectations. Only by taking these steps can an attorney attempt to protect clients’ interests and help them achieve their goals. Advising same-sex couples is one area of law that presents an enormous challenge at this time as the law seems to be changing almost daily.
In 2013, the U.S. Supreme Court ruled that the Defense of Marriage Act’s requirement that “marriage” and “spouse” could only apply to heterosexual unions was unconstitutional. Since then, state law bans on same-sex marriage have been crumbling in a flurry of lawsuits throughout the country in both federal and state courts. Florida is currently a very hot battleground over this issue as no fewer than four current lawsuits are seeking to overturn Florida’s ban on allowing and recognizing same-sex marriages are proceeding at various stages.
Currently pending before the U.S. District Court for the Northern District of Florida is a consolidated lawsuit where the plaintiffs challenge Florida’s ban on recognizing same-sex marriages legally performed in other jurisdictions (both in other states and Canada). In addition to due process claims, this case involved the Full Faith and Credit Clause of the U.S. Constitution because Florida’s ban requires state courts and officials to ignore and refuse to recognize valid acts of other states and countries.
The same issue is pending in a recent case filed in the Fourth District Court of Appeal where Gildas Dousset has appealed Florida Atlantic University’s administrative decision that his legal marriage to a Florida resident in Massachusetts did not qualify him for in-state tuition because of Florida’s ban on recognizing same-sex marriages. Mr. Dousset’s initial brief has been filed. Because this case has been filed as an appeal in the district court of appeal, it may leapfrog the other legal challenges to Florida’s ban on same sex marriages.
Challenges to ban
Currently, pending in both Monroe and Miami-Dade counties are lawsuits by same-sex couples who are Florida residents seeking to declare Florida’s prohibition of same-sex marriages unconstitutional. These are unmarried couples who desire the same right to be married legally in Florida as heterosexual couples. Summary judgment motions are pending in both cases.
How to help clients
As bans on same-sex marriage are being declared unconstitutional across the country, if the trend holds, it is certainly that Florida’s ban is likely to be overturned. However, there are no guarantees that will be the case and, in the meantime, clients still need advising. Until the law is more clearly defined, the following steps are still important in guiding same-sex couples. It is important to communicate with clients and let them know if and when the ban on same-sex marriage is overturned, some of these items may no longer be necessary. Until this issue has been definitively decided, it is prudent to keep the following legal preparations in place:
• Health care proxies/hospital visitation authorizations: to insure spouses/partners will have the legal right to be involved, make decisions and protect the other.
• Durable power of attorney: to enable a spouse/partner to handle legal and financial affairs of the other in the event the other spouse/partner becomes incapacitated.
• Cohabitation agreements: to lay out spouse/partner responsibilities and provide for a division of the spouses/partners’ property and provide for financial support of the spouses/partners.
• Will and estate planning: necessary because where a surviving heterosexual spouse receives a certain percentage if there is no will and is entitled to the “elective share” even where there is, no inheritance rights exist for same sex spouses absent estate planning.
• Adoption: Florida’s ban on gay adoptions has been overturned. A co-parenting agreement is needed if a second parent adoption cannot be accomplished or is not desired to make sure the parents’ rights will be equal.