DOMA and what it means for Florida Residents

First, the Supreme Court has handed down a decision today dealing with the Federal Defense of Marriage Act, here:

United States v. Windsor

In plain language, it says that IF a state has recognized Same Sex Marriage, between two men or two women, THEN the Federal Government may not treat a Same Sex Couple who have been married in that state any differently under federal law than they would treat a couple involving a man and a woman. This applies to a lot of government benefits; tax filing status, pension rights, life insurance benefits, there are over a thousand types of federal benefits and rights that may be affected.

However, in terms of what it means for Florida residents; the answer is probably not much.

First, Florida does not recognize same sex marriage, and the opinion clearly does not require any state to recognize same sex marriage; so a same sex couple can’t get married in Florida.

Second, the other way this might impact a Florida couple is if a same sex couple were to get married in a state that recognizes same sex marriage and move to Florida. For instance, if a same sex couple were to get married in New York State and move to Florida.

Under that opinion released today, Florida would NOT be required recognize the marriage; the couple would not automatically have marital rights under Florida law, under intestacy and homestead rights.

And, I do not know for certain, but under the opinion as it is written, I think it is likely that any rights that the same sex couple had under Federal law might be lost if they moved to Florida. In the example I am using here; if a same sex couple were married in New York the Federal government would have to recognize that marriage for the purposes of Federal law so long as they lived in a state that recognized same sex marriage; so long as they lived in New York or moved to a state that recognized same sex marriage. But, if they moved to a state that did not recognize same sex marriage, such as Florida, then it is not clear that the Federal government is required, or even allowed, to continue to recognize the marriage.

I am not trying to throw water on anyone’s parade here, but it’s apparent that there is already a lot of “bad information” about this decision in the media, and even amongst some lawyers I’ve interacted with today. It is one thing to feel good about this decision, it’s another thing entirely to make some legal decisions based on what may be wishful thinking; I would strongly caution anyone from outside Florida who is in a same sex marriage and from a state that recognizes same sex marriages from moving to Florida and thinking either that Florida will recognize the marriage (I can categorically state that, at least for right now, Florida absolutely will not recognize same sex marriages from other states and this opinion in no way requires Florida to do so) or thinking that just because the Federal government is now required to recognize the marriage that if you move to Florida the Federal Government will be required to recognize the marriage (the short answer is, frankly, I don’t know; that was not decided by today’s opinion and the way it is written tends to make me think it is limited to a very specific set of facts; someone living in a state that recognizes same sex marriages). The point is, don’t assume; if you or a loved one are newly entitled to Federal benefits under DOMA, and are thinking of moving to Florida or another state where the marriage is not recognized, you need to slow down and at least contact a lawyer. This is almost certainly going to be the subject of litigation; but litigation is quite expensive, can take several years and sometimes people lose; you do not want to be the person who brings a test case on this.

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