On October 10, 2014, Federal District Court Judge Max O. Cogburn Jr. issued a ruling declaring North Carolina’s 2012 ban on gay marriage unconstitutional. Marriage, as well as being an expression of love and commitment, is an important legal contract. Here are three big changes for same-sex married couples:
Property Ownership: Tenancy by Entirety
Same-sex married couples can now own property as “tenants by entirety.” This is an extremely important protection for the property from creditors, because a lien or judgment against one of the spouses will not attach to the property, which is technically owned by the marital unit. It also means that when one spouse dies, the other owns the property completely. Neither spouse can independently sell or encumber the property, nor leave any part of it to a third party in a will. While both spouses are alive, a tenancy by the entirety can be destroyed only by an action taken by both spouses legally changing to another form of ownership – or by divorce.
If you and your spouse owned property together prior to Judge Cogburn’s ruling, the change to tenancy by entirety is not an automatic one. Call us for a free consultation on how to update your deed.
Inheritance: Elective and Intestate Share
In North Carolina, one spouse cannot disinherit the other. The surviving spouse has a right to his or her elective (if there is a will) or intestate (if there is no will) share, though the calculation of that share is not simple and must be applied for within a certain period after the death.
This can have important ramifications if you have children from a previous marriage; some couples make pre- or post-nuptial agreements in which they waive the right to future elective shares. Please call us for a free consultation if you would like help thinking through your options.
Up until the October ruling, same-sex couples have had a hard time being equal parents under the law. One parent could adopt a child; but if he or she was unmarried, the partner could not also adopt. This meant that if the couple split up or something happened to the adoptive parent, the second parent would have no right to access to the child. Now that same-sex marriage is recognized, second-parent (or “step-parent”) adoption is on the horizon.