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Same-Sex Marriage Legal Pros and Cons

In the wake of the U.S. Supreme Court's landmark Obergefell v. Hodges (2015) decision, same-sex marriage is now protected federally in all 50 states. Obergefell cleared the way for same-sex couples to get married throughout the United States. The ruling ushered in many other changes, as well, such as requiring states to recognize same-sex marriages performed in other jurisdictions. It also simplified divorce processes, as well.

Obergefell dramatically altered the legal landscape for same-sex couples, citing the Equal Protection clause of the Fourteenth Amendment and allowing same-sex couples to marry. Read on to learn more.

Legal Benefits of Marriage for Same-Sex Couples

Children and Your Rights

If you plan on having or raising children, your status as a couple greatly affects your rights regarding your children. In marriage, both partners have the same rights and responsibilities. In a divorce, both partners can seek custody and visitation rights like any married couple. Upon death, the remaining parent automatically becomes the primary legal parent.

Absent marriage, same-sex couples can sometimes turn to adoption in order to gain the rights of legal parents. No state may deny adoption to same-sex couples as long as they are married. However, unmarried couples may run into the same legal challenges unmarried opposite-sex couples face when it comes to adoption.

Joint Property Rights

Marriage generally creates a presumption of joint ownership of property accrued during the marriage. The presumption is the opposite for unmarried couples, where your property will be presumed to be owned by whoever acquired it. Deciding which presumption works best for you and your partner can be helpful in deciding whether or not to get married.

Death and Taxes

Marriage creates a legal framework for dealing with issues that result from death, whether regarding property, parental rights, or taxes. To create these effects as an unmarried couple, significant time and expenses will have to be spent establishing a similar relationship by contract. Even then, some things can't be recreated through contract, such as freedom from inheritance and gift taxes.

Another issue to keep in mind is the host of property-transfer taxes that, by default, don't apply to married couples but do apply to unmarried couples. It can make moving assets around in a cost-efficient way very difficult for unmarried couples.

Government Benefits

The government provides a lot of benefits exclusively to married couples. A small sample of these benefits includes Social Security benefits, health care benefits, nursing home care, and unpaid leave from your job to care for family members. In light of the 2015 Obergefell decision, federal and state benefits are available to all legally married couples in the United States. This is true regardless of a married couple's sexual orientation.


Legal marriage can be one of the easier ways to become a citizen in the U.S. While even legally married same-sex couples did not have this access to citizenship under the Defense of Marriage Act (DOMA), same-sex and opposite-sex unions are now equally protected under federal law.

Legal Cons of Getting Married


Marriage, for all its pros and cons, requires that certain formalities be performed, which may or may not be what you want. Unmarried couples can get together, and break up, without all the formalities (and court hearings) required for married couples.

Dividing Your Property

If you divorce, property laws in your state dictate how you and your former spouse's marital property will be divided. This may or may not be related to who is at fault. In community property states, you and your former spouse will each be entitled to 50 percent of the marital property. In other states, the division of property will be determined on "equitable" grounds, which may or may not involve a 50/50 split.

Note that division of property also applies to liability for debts. As a result, many former couples become embroiled in costly legal battles over the division of assets and debts in a divorce. For unmarried couples, on the other hand, each partner typically leaves with whatever they accumulated and responsibility for debts in their name. Also, married couples have a right to seek alimony, whereas unmarried couples may have to account for this in a pre-marriage agreement.

Decide What's Best for You and Your Partner

Given all the above issues and factors, spend some serious time with your partner considering the benefits and drawbacks of marriage. If you plan on raising kids and you're okay with taking on the other partner's debts, then getting married may make sense. On the other hand, if you don't necessarily want to be burdened with the other person's debts or institutional marriage just isn't for you, then a marital union might not be for you.

Get More Information About Same-Sex Marriage from a Legal Professional

Following the Court's Obergefell decision, same-sex marriage carries all the same rights and responsibilities as for straight married couples. But if you were previously married or have some legal issues to iron out following the decision, you might want to speak with an experienced family law attorney near you.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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