By Richard A. Mann, Richard A. Mann PC
Indiana same-sex couples: Now that you have your rights, what do you need to do to protect yourself?
As a firm who represented Plaintiffs in the recent landmark cases in Indiana resulting in the Federal District Court declaring Indiana's discriminatory anti-recognition of same-sex marriages unconstitutional, we thought it incumbent upon us to outline a few of the areas that need to be addressed by same-sex couples who are now married or are going to become married.
Now that you are married, some of the planning you have done before may need to be updated or changed completely.
- Do you own real estate together in joint names? If you do, when you received the property you received it as tenants in common, joint tenants or joint tenants with full rights of survivorship. This is set forth by how the deed is prepared. Receiving the property as tenants by the entireties was unavailable to you at the time. If you are married or soon will be married, after one becomes married in Indiana, a couple can take property as tenants by the entireties. What this means is, among other things, that the marriage owns the property, not either individual. If you were tenants in common, you owned the property in a percentage. Now if you take the property as tenants by the entireties, you would own the property as an undivided interest in the entire property. If one of you has creditors and you own the property as tenants by the entireties, then a creditor of only one of you cannot affect the property. A creditor would have to be a creditor of both of you in order to have any effect on your marital residence.
- If you did couple's planning or you had an agreement that set forth what would happen in case you broke up or separated, that agreement may no longer be in effect. Once you became married, the Indiana law regarding dissolution of marriages would control unless you anticipated this in your agreement. Therefore, you should have your agreement reviewed by an attorney who is familiar with such matters. Many general practitioners are not familiar with the intricacies of special cohabitation agreements.
- Under Federal law, there are certain benefits that are passed to a spouse. Therefore, you should have an attorney familiar with these types of matters review your benefit programs such as retirement plans, 401(k), 403(b) and the like. If you want someone other than your spouse as the beneficiary, there are certain things that must be done and your spouse now has certain federally protected rights.
- Health insurance benefits previously were not available to same-sex couples through many employers. While many large employers such as IU Health, Cummins, Eli Lilly & Co., J.P. Morgan Chase and the like were offering same-sex benefits, many smaller employers were not. Now that your marriage is legally recognized in Indiana, a review of the potential benefits you have available as the spouse of an employee of a corporation or other type of business needs to be done. You should not necessarily jump into changing plans until you examine the costs of the change. You should also consult a CPA who is familiar with this situation so that you can determine the tax consequences, if any, of the newly allowed benefits.
- You should also have an attorney who is familiar with wills, trusts and probate matters review your estate planning. Under Indiana law, a spouse has, in most instances, a right to elect against a will. What this means is that if your will is not addressed, the spouse can come into court and potentially take against your estate regardless of what the will says. If you do not have a will, your spouse now has rights to a portion or all of your estate. This needs to be reviewed, especially if you have children from a previous relationship as the question then becomes what is the effect on your children.
- Indiana law provides for spousal privilege, meaning that a court cannot require a spouse to testify regarding confidential marital communications. This, however, does not prevent a spouse from voluntarily testifying to such communications.
- Do you or your spouse have debt for necessaries such as medical expenses, room, board etc.? Under Indiana law a spouse can be secondarily liable for such expenses. If a creditor is seeking to collect such expenses from you, you should speak to an attorney who handles such matters to fully understand your rights and options.
- Have you separated from your prior partner and did not get a divorce? Did you marry again? Since Indiana's anti-recognition law was determined to be unconstitutional, Indiana's divorce laws provide for the dissolution of opposite-sex and same-sex marriages alike. You should speak with an attorney who is familiar with divorce matters to discuss your legal rights and responsibilities.
This post was written by Richard A. Mann, Richard A. Man PC. If you would like to submit content or write an article for the Family Law Section page, please email Mary Kay Price at firstname.lastname@example.org.