Considerations Prior to Same-Sex Marriage in New Mexico

It has now been more than a year that the United States Supreme Court, in United States v. Winsor (June 26, 2013), held Section 3 of the Defense of Marriage Act (“DOMA”) unconstitutional and in effect paved the way for more and more states to legalize same-gender marriages and for the federal government to recognize those marriages.

New Mexico was on the front-end of these laws and have a number of laws favorable to same-sex marriage.  One thing to note is that in New Mexico, and presumably elsewhere, same-sex marriage will be treated the same as any other marriage.

Because same-sex marriage is now for the most part treated as any other marriage, the considerations below may apply equally to all marriages.  However, some are more situated to same-sex marriage due to the unique issues that these marriages may bring.

Pre-Marital Agreements in Case of Significant Assets of Same-Sex Spouses

A pre-marital agreement, also known as a prenuptial agreement, is a good place to start your wedding planning, especially if there is a large disparity in assets and income between partners.  Since same-sex marriages have only recently been legalized in many states, it is quite possible that the people considering a same-gender marriage, have already lived a full life, and may be considering marriage later in life.  Which means that each person may have accumulated a significant amount of assets in their lifetime.

Pre-Marital Agreements to Address Minor Children of Same-Sex Marriage

In other instances, you may already have children from a previous heterosexual marriage.  If you already have children and you are considering a same-gender marriage, a pre-marital agreement may be an option that you may want to consider.  With such an agreement, you can ensure that your children, if they are still minors, are protected in case of a divorce or an untimely death.

Modification of Wills to Reflect the Wishes of the Parties and to Avoid Probate Disputes

Although more and more states are legalizing same-gender marriages, extended family might not share your glee in your newfound ability to enter into a same-sex marriage.  As such, consideration should be given to how family members may react in case of an untimely death.  Having a will that protects your future spouse’s interests to your estate may be a smart first step. A will may also help, when you already have grown children and you want to make sure that your estate is equally divided among all your loved ones.

Tax Considerations in Same-Sex Marriage

Once you decide to formalize your union with a same-gender partner, you will also have to consider the tax consequences of doing so.  An important consideration will be on whether to file together as a married couple or as married filing separately.  In addition, you will have to consider the estate tax consequences of bequeathing your estate to your same-gender spouse.

Consult an Experienced Family Law Attorney

Although the federal government has recognized same-gender marriages in a majority of states, you must consult with an attorney in your state to determine if same-gender marriage has been legalized in your state.  Here in New Mexico, same-gender marriage licenses are being issued and the marriages are recognized.

Each situation is different and if you entered into a same-gender marriage in one state then move to a different state, you may need to determine if the state you relocated to will recognize your same-gender marriage.

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