Post-Election LGBT FAQs

We want to offer some answers to the most frequently asked questions about LGBT family law since the November elections. Below are direct quotes from some of the leading national authorities on LGBT legal issues as they relate to marriage and parentage issues.

Will marriage be taken away from us now that President Trump is in office? Should we hurry to marry immediately?

Supreme Court decisions don’t disappear overnight. The Court is extremely unlikely to reconsider the two recent landmark marriage decisions vindicating the fundamental right to marry and to have one’s marriage treated equally by our federal and state governments.

Of course there are many other issues of importance to the LGBT community that are before the Court now or likely to be so in the next few years. So the composition of the Court is of great importance to us, and we are gravely concerned about the outcome of the election because of its implications for the Supreme Court.

However, even if the balance of the Court shifts in the next few years, we are optimistic that the Court will refuse to reconsider the footing of its recent marriage decisions simply because courts are reluctant to reverse themselves too soon. Additionally, these decisions enjoy significant popular support.

Thus, if you married somewhere marriage was legal at the time of your ceremony, you’re still married. And you’ll stay married as long as you want. If you legally married in Canada, or prior to the Supreme Court’s marriage decision, or in a state other than the one in which you currently live, you do not need to get married again, and there is no reason to worry that your marriage will be taken away any time soon.

If you are in a registered domestic partnership or civil union, wondering whether to marry, here are some things you should consider. Registered domestic partnerships and civil unions are not recognized under federal law as marriages. Couples in domestic partnerships and civil unions are not eligible for the vast majority of the federal protections, responsibilities, and access to federal programs afforded to legally married couples (whether same-sex spouses or different-sex spouses). Source

How does being legally married change things?

There are more than 1,100 places in federal law where a protection or responsibility is based on marital status. A few key examples include access to Social Security survivors’ benefits; the option to use family medical leave to care for a spouse; the opportunity to sponsor a foreign-born spouse for citizenship; access to veterans’ spousal benefits; spousal health insurance for the spouse of a federal employee; and the ability to file federal taxes as a married couple. Reasons not to get married could include concerns about how household income would be determined if either or both members of a couple receives public assistance, or a desire to adopt a child from a country that may not approve adoptions of same-sex spouses.

Even though the Court is extremely unlikely to take away your marriage, there are ways short of reversing a marriage decision in which the new administration could make life harder for same-sex spouses and their children, such as by permitting discrimination against these families in some contexts. It is also possible that the new administration could reduce the respect given by federal government agencies to the marriages of same-sex spouses. 

Do I need to take any steps to protect our legal marriage?

If you are already married, there are no additional steps you need to take to protect your marriage. It is very unlikely that same-sex couples’ marriages will be invalidated. The law is very strong that if a marriage is valid when entered, it cannot be invalidated by any subsequent change in the law. So people who are already married should not be concerned that their marriages can be taken away. To the contrary, it is important that they continue to live their lives as married couples.

All married couples should also make sure that they have planned for what will happen to their spouse if one of them passes away. This requires estate planning, and could be through a will or trust, or designating your spouse as a beneficiary on your financial accounts. If you or your spouse are older, or if one of you has a disability, make sure you understand your rights under Social Security and Medicare. Your spouse may be able to receive more benefits as your spouse than on his or her own. If you think you may be able to get spousal Social Security benefits, you should apply as soon as possible because the start date for these benefits is tied to when you apply.

How do I protect my relationship with my child(ren)?

We still strongly recommend that all non-biological parents get an adoption or judgment from a court recognizing that they are a legal parent, even if they are married and even if they are listed as a parent on the birth certificate. Having your name on the birth certificate does not guarantee protections if your legal parentage is challenged in court.

Being married to a birth parent does not automatically mean your parental rights will be fully respected if they are ever challenged. There is no way to guarantee that your parental rights will be respected by a court unless you have an adoption or court judgment. Without this, you could lose any right to your child if something happens to the other parent or if you break up.

For example, if the birth parent dies and you are not recognized as a parent, your child could end up in foster care or with a relative instead of being able to stay with you. If you use a known donor, depending on your situation, the donor could be considered to be a legal father unless you terminate any rights he may have in an adoption. If you end up receiving Medicaid or other government benefit, the government could bring a court case to make the donor a legal father and require him to pay for the benefit your child receives.

Spending a little time and money doing an adoption or getting a parentage judgment now can save you from being separated from your child and from spending thousands of dollars in legal fees later.