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NEW MEXICO DEFIES DOMA: CREATES INHERITANCE AND ESTATE RIGHTS FOR GAY COUPLES AND SAME SEX MARRIAGES

Uncategorized Dec 20, 2013

The rights of same sex couples increased today, as the state of New Mexico weighed in on the “death” of DOMA.   According to the Santa Fe New Mexican: “the state Supreme Court ruled unanimously Thursday that it’s unconstitutional to deny marriage licenses to same-sex couples in New Mexico………….New Mexico joins 16 other states in allowing gay marriage through legislation, court rules or voter referendums.”

This means a lot more than just “gay couples can marry in New Mexico.”  There are significant and very valuable property rights which spouses, including surviving spouses, receive: just by being married.

Surviving spouses, a widow or widower, have valuable property rights, inheritance rights, under inheritance laws.   Florida has some of the most valuable property rights for a widow or widower in the country.  Inheritance rights for a spouse, a widow, can include, from state to state, an interest in homestead or family residence, a right to certain bank accounts, stocks and bonds, personal property, perhaps even a car, and a specific guaranteed % of the estate.  In Florida, for example, a surviving spouse, a Florida widow, may receive a minimum 30% of the Florida estate.  This is called the Florida elective share.  A Florida spouse who survives a dead Florida resident gets 30% of the Florida elective estate.   The only exception to this Florida inheritance law is if the spouse voluntarily waives her or his right to an inheritance or share of the Florida estate.   In some instances, a spouse may be able to get 50% or 100% of the estate depending on a number of factors including whether a Florida will existed.

So, what does this mean for DOMA or the Defense of Marriage Act?  DOMA was overturned by the US Supreme Court in June of 2013.  But some states laws still need to get there.  In Florida, for example, Florida law does not recognize same sex marriages or marriages between gay men and women.  Florida does not recognize gay marriages.

New Mexico and other states who have permitted gay couples to marry have created more rights than just the right to marry.  By permitting gay marriage, New Mexico is granting to spouses, including gay spouses, benefits, rights and privileges found in the law.  So, if Florida permits gay marriage, which it does not right now, it will create inheritance rights for gay men and women.  It will create inheritance and estate rights for gay couples and gay spouses and gay widows.

For gay couples in Florida, however, the road to Florida inheritance rights and Florida estate rights, is a bit longer.  Gay people who enter into a gay marriage in a state which permits gay marriage will have their inheritance rights decided by a Florida probate court one day.  When a gay person dies, his or her gay spouse will no doubt try to claim Florida inheritance rights and Florida estate rights through the probate process.  Or, perhaps the dead Florida resident’s family will “fight” the surviving gay spouse.   The war for equality and Florida inheritance rights and Florida estate rights continues.  Until the….advocate hard.  Litigate smart.