Two recent decisions in Miami Dade and Monroe Counties have struck down Florida’s Constitutional and Statutory Ban on Same Sex Marriage (Florida Statutes Section 741.212 and Florida Constitution Article I, Section 27). On July 17, 2014 in Monroe County, Judge Luis Garcia and on July 25, 2014, in Miami Dade County, Judge Sarah Zabel the Court issued a ruling stating that applicants for a marriage license in Monroe and Miami-Dade County, respectively, could not be denied based on their sexual orientation. In the introduction of her ruling in Pareto v. Ruvin, Judge Zabel cited Loving v. Virginia, 288 U.S. 1, 12 (1967) (discussing inter-racial marriages): “To deny [marriage] on so unsupportive a basis…is surely to deprive all the State’s citizens of liberty without due process of law…[the] freedom of choice to marry not be restricted by invidious…discriminations.” In addition to ruling on whether or not the bans were constitutional, Judge Zabel discussed the religious and moral arguments made by several amicus groups as well as the city of Miami Beach and Orlando, including: (i) whether the ban could be upheld because of the history and tradition of marriage; (ii) whether opposite sex households were the best environment for childrearing; (iii) whether the ban furthers responsible and natural reproduction; (iv) whether the ban prevents the spread of HIV and other cancers prevalent among gay men; and (v) whether there is a harmful impact on marriage if same sex marriages are legalized. There are various rights, which Judge Zabel found, Florida’s same sex marriage ban denies and thus, makes homosexuals “second class citizens” and that “same-sex marriage neither harms humanity nor undermines ‘marriage’ and ‘family’ institutions. The Court ruled that Florida’s ban on same sex marriage violates the Due Process and Equal Protection Clauses of the United States Constitution (and “offends basic human dignity”) and that Article I Section 27 of the Florida Constitution and Florida Statutes Sections 741.212 and 741.04(1) (such portions prohibiting the issuance of a marriage license if one party is not male and the other female) are void and unenforceable.

 

While these two cases do mark a historic moment for same sex marriage proponents, they do not, however, mean that Florida same-sex couples in Miami Dade or Monroe counties can rush to the courthouse to get married. Both decisions are currently stayed pending appeal by Pam Bondi, Florida Attorney General (possibly to the Third District Court of Appeals and then to the Florida Supreme Court and ultimately, the U.S. Supreme Court depending on the outcomes of the prior appeals). With one more similar case pending in North Florida and the impending appeals, it is anticipated that same sex marriage will be a preeminent issue in the upcoming years and one to watch for estate planners and same sex couples in Florida.

 

Pending the appeal, however, estate planners should be aware that there are several Florida rights for married couples denied to same sex couples that should be addressed in their estate plans, including the rights:

 

(i) The Right to be presumed a parent to a child born to a spouse during the marriage

 

a. In such cases, it is imperative that the child be declared the child of the partner of the child bearing spouse in a Will or Revocable Trust document;

  

(ii) The right to make medical decisions for an ill or incapacitated spouse

 

a. same sex couples should ensure that they have an advanced medical directive in place to ensure that their partner can not only make medical decisions for an incapacitated spouse, but also be informed of medical issues and/or status of an incapacitated partner (i.e. an accident or during surgery);

  

(iii) the right to spousal insurance and coverage;

 

a. Estate planners should be aware of this issue in counseling their clients to ensure both parties have adequate coverage and discuss whether either partner’s employer extends insurance and other marital rights to domestic partnerships and determine what the client needs to provide in order to ensure that his or her partner is covered.

 

(iv) inheritance rights (i.e. homestead, elective share, intestate rights of a spouse, asset protection rights such as tenants by the entireties, etc)

 

a. Same sex couples must be certain that they have an estate plan in place that will allow for distribution of their assets upon death as they desire as a surviving same sex partner has no entitlements that are provided for opposite sex surviving spouses in Florida); and

 

(v) the right to make final burial and bodily remains decisions for a spouse

 

a. same sex couples should prepare a Declaration of Final Instructions to ensure their wishes are followed upon death).

 

Same sex couples should, perhaps even more than other married couples, ensure that their estate plans are in order.