Lyons Snyder & Collin. Trial Attorneys.


The financial and social benefits afforded to individuals who can legally marry vs. same-sex couples who cannot legally marry in Florida

By Philip M. Snyder

In early February 2011, the State of Illinois became one of a handful of States to grant same-sex couples a broad array of legal rights and responsibilities similar to those of marriage.   By the end of the year another four states, including New York and California, may well also end the exclusion of same-sex couples from marriage.   Unfortunately, Florida’s treatment of same-sex couples is dated, even as a majority of Americans nationwide now support the freedom to marry for same-sex couples.

In 2008, Floridians approved the constitutional amendment known as Proposition 2 and the Marriage Protection Amendment.  Proposition 2 protects marriage as the legal union of only one man and one woman as husband and wife and provides that no other legal union that is treated as marriage shall be recognized.   As a result, same-sex marriages are not recognized in Florida.

Many same-sex couples in long-standing monogamous relationships maintain that they do not feel strongly about the issue of same-sex marriage.  These same-sex couples fail to appreciate the numerous financial and social benefits afforded to legally married couples.

The increasing cost of health care has an even greater impact on same-sex couples (who in the eyes of Florida are considered unmarried) as compared with married couples.  As it stands now, same-sex couples are not eligible for Medicare or Medicaid.  In part, Medicaid policies are designed to protect the healthy spouse from becoming destitute from the high-cost of their partner’s health care.   Additionally, same-sex couples are not entitled to the rights extended by the Family Medical Leave Act (i.e. authorized time off work to tend for a love one).  To add insult to injury, in the case of an emergency, medical providers oftentimes preclude same-sex couples from accessing their partner’s medical information or to make medical decisions on their partner’s behalf.

From a solely financial standpoint, although same-sex couples share expenses and joint bank accounts, the Federal Government does not view them as one entity or provide them with an opportunity to reap the tax benefits of filing a joint tax return.  The tax costs for individuals filing solo returns can be substantially higher with lost benefits totaling hundreds, if not thousands, of dollars per year.   Same-sex couples are also unfairly precluded from purchasing joint homeowner’s or auto insurance policies – typically leading to higher premiums.   In civil actions, same-sex couples are not permitted to seek wrongful death benefits.  Unlike recognized marriages, neither partner of a same-sex couple may legally seek rehabilitative or permanent alimony upon the dissolution of their relationship.

Same-sex couples do not automatically inherit property (including residences) from a deceased partner without a will.  In recognized marriages, property passes automatically to a surviving spouse.  Theoretically, “your” residence could bequeath to your partner’s distant grandmother if your partner did not prepare the proper legal documents.  Upon death, surviving partners are oftentimes levied with considerable estate taxes.  Unlike married couples, surviving same-sex partners are not entitled to draw on any Social Security spousal benefits, Social Security survivor benefits, or the distribution of retirement monies.   Social Security spousal benefits protect spouses who stay at home to raise children.

One social benefit of marriage is the ability for one partner (non-resident) to apply for lawful permanent residence (“green card”) upon marrying a United States citizen.  Non-residents in same-sex relationship are not afforded this benefit.   Additionally, non-residents oftentimes cannot apply for basic social privileges such as a valid driver’s license.

Recently, one social benefit traditionally associated with only straight men and woman was finally overturned in Florida.  Up until 2010, Florida was one of the few States that prohibited same-sex couples from adopting children.   In Florida Dep’t of Children and Families v. In re: Matter or Adoption of X.X.G. and N.R.G., the 3rd District Court of Appeals declared Florida’s law prohibiting gay men and woman from adopting children as being unconstitutional.  The 3rd District Court of Appeals’ ruling is a huge win for the gay and lesbian community and should galvanize same-sex couples and advocacy groups to push for the appeal of Proposition 2 and the Marriage Protection Amendment.  Besides the sensible argument for basic equality, same-sex couples should further argue against the financial and social benefits only afforded to legally married couples.  3