A prenup is a good idea no matter the sexual orientation of the married couple. However, there is added incentive for same-sex couples in New York.
Civil rights advocates can feel proud of the progress made on marriage equality. More than half the states now recognize same-sex marriage. In addition, the U.S. Supreme Court has ruled that portions of the Defense of Marriage Act are unconstitutional, meaning that federal benefits must be provided to same-sex couples married under state law. Approximately two-thirds of Americans are able to marry their partner regardless of the sexual orientation of the couple.
That is not to say that same-sex marriages do not have unique considerations, however, or that the marriage equality fight has been won. While state and federal protections regarding same-sex marriage are present in New York, for same-sex couples traveling or living outside the state, those rights may not transfer. This is known as “portability,” and it is why New York same-sex couples should create a prenuptial agreement before tying the knot.
The benefits of prenuptial agreements
One reason same-sex couples should consider a prenup is that premarital agreements are beneficial for almost all married couples. A premarital agreement provides an insurance policy of sorts against the dissolution of the marriage. Studies have repeatedly shown that a premarital agreement does not indicate whether the marriage will succeed or not. However, if a couple decides that it is better to dissolve the marriage later, a prenuptial agreement can save time, money, stress and arguments. In fact, as finances are the most common cause of arguments among married couples, having a thorough conversation regarding finances at the start of the marriage can be beneficial.
Same-sex couples have additional incentive, however. The most likely path for marriage equality in all states is through federal courts – a process that will likely take some time to resolve, as demonstrated by the U.S. Supreme Court’s declination to hear any cases regarding same-sex marriage this term. That means that states which refuse to recognize same-sex marriage may also refuse to grant same-sex divorce, even if legally married in another state – and this situation may not change for years. Since same-sex marriage first became law in Massachusetts, numerous same-sex couples have been unable to move on with life after marriage because they moved to a state which does not recognize same-sex marriage.
Prenuptial agreements allow married couples many of the legal rights afforded by divorce even if the state they move to does not recognize same-sex marriage. These include spousal support, property division and retirement benefits.
Additionally, same-sex couples can create other beneficial documents at the same time as a prenuptial agreement, such as a financial and medical power of attorney, that can give a partner many of the same rights granted to married couples under state law.
What exactly should be included in a prenuptial agreement depends highly on individual circumstances. For same-sex couples, however, a prenuptial agreement is beneficial no matter the current financial state of the spouses.
Keywords: Same-sex marriage, prenuptial agreement, divorce