Most counties in California including San Diego have suspended the issuance of marriage licenses for same sex couples after California voters passed Proposition 8 on Tuesday. Proposition 8 amends the California constitution to limit marriage to a union between a man and a woman.
Back in May of this year, the California Supreme Court ruled that such a ban was unconstitutional. Approximately 18,000 marriages have taken place between June when the decision became final through November 4. What happens to the validity of those marriages? California Attorney General Jerry Brown has said that since the amendment will not be retroactive, those marriages will be valid. He also has indicated the State will defend the validity of those marriages in court if they are challenged.
Expect there to be legal challenges to the Proposition. Attorney Gloria Allred, who filed the original suit that resulted in the Supreme Court ruling, has in fact already filed a lawsuit on the basis that the amendment authorized by the passage of Prop 8 is unconstitutional. A coalition of gay rights advocacy groups and the American Civil Liberties Union have also petitioned the California Supreme Court. Some pundits believe the issue may go all the way to the U.S. Supreme Court.
Regardless of the legal wrangling which will continue, same sex couples should continue to make estate planning a priority so that if they become disabled or pass away, their wishes will be honored. There also may be some potential issues that arise in the interim if a same sex spouse passes away and either has no will or has a will or trust leaving assets to their spouse.
No doubt family law issues will also develop as the courts sort out the legal ramifications of the passage of Prop 8. Same sex couples can continue to register as domestic partners to receive some benefits but there are a lot of protections granted to heterosexual couples under federal law that remain in question for same sex couples.
If you are a same sex couple needing more information on estate planning or family law issues, contact us at Law Office of Scott C. Soady, A Professional Corporation for a free confidential consultation.