While the Supreme Court has declared the Defense of Marriage Act (“DOMA”) to be dead, as Chief Justice Roberts noted in his dissent, DOMA is not quite dead yet. States which have not legalized Same Sex Marriages are not required to recognize a Sister State’s Same Sex Marriage. This creates a myriad of problems for same-sex couples.
The equality of a same sex marriage may depend upon which State the spouses are located in at a given moment. In fact, in order to see the full implications of DOMA, all one needconsider is what would have been the outcome in the Terri Schiavo case, had Terri been a partner of a same-sexmarriage,rather than a heterosexual marriage. Under DOMA, inasmuch as Florida does not recognizesame-sex marriage, it would not have had to give legal effect to Terri’s marriage. Hence, the Court may have allowed Terri’s parents, not Terri’s spouse, to make decisions on her behalf. In this respect, DOMA would have been a matter of life and death.
A prenuptial agreement may serve to protect many of the rights which a state not recognizing a same sex marriage would otherwise deny spouses. Living will and health care proxies could be included with the agreement so as to assure the spouse’s rights in the event the other spouse ends upon terminally ill within a State which does not recognize same-sex marriage. Language with respect to adoption of children could be included to assure a spouse’s right to access to children of the marriage, in the event a State chooses not to recognize such rights. Choice of law and waiver of personal jurisdiction language could be included as well, in order to assure that some Court has jurisdiction to dissolve the marriage.
Thus, entering into a prenuptial agreement is something every same-sex couple should seriously consider. Given DOMA, a prenuptial agreement could be used not only in the event the marriage is to be dissolved, but also, and maybe more importantly, it could be used to protect a spouse’s rights in the event a same-sex partneris in a State which does not recognize same-sex marriage.