Getting married? Here’s your legal cheat-sheet

    Maybe you’re thinking about proposing. Maybe you’ve set a date. Or maybe you’re taking the plunge next week — regardless of where you are in the wedding bliss process, this is a legal checklist for you and your spouse-to-be.  While marriage is a time of joy, there are also very important legal and financial matters to address before (or after!) the wedding bells. This column is meant to be your cheat-sheet.

    ➢ Legal marriage requirements   

    I hate to start out with a disclaimer, but hey, I’m a lawyer! First and foremost, please refer to the laws in your state and/or speak with a family-law attorney since each state is different when it comes to marriage-related issues such as the legal requirements for marriage. Make sure you have fulfilled all marriage requirements in your state prior to the big day, and this is even more crucial if you are having a destination wedding in another state or country.

    ➢ Marriage ceremonies

    Most states have legal requirements pertaining to the marriage ceremony itself, including who may perform the marriage ceremony (i.e. a Justice of the Peace or a minister) and whether witnesses to the ceremony are required.  If you are a Pennsylvania resident, I highly recommend taking advantage of the Quaker marriage license. The cost is $90, $10 more than a traditional marriage license, but allows you to self-unify your marriage with two witnesses, thus removing the need for an ordained minister or a Justice of the Peace.

    ➢ Pre-marital agreements   

    Some say it’s not romantic to think of marriage as a legally binding contract, but it is one. People are offended by a two-year Comcast contract, but enter a marriage, which is a contract that lasts in perpetuity, without anything in writing; and the “breakage fee” is a lot more than $350!  

    Particularly for LGBTQ individuals, who tend to marry later in life, the default state divorce code may not effectively provide for your relationship. Crafting a pre-marital agreement can be an empowering process that benefits you and provides stability around the legal and financial aspects of your marriage.

    Pre-marital agreements must be in writing (oral agreements are not enforceable) and voluntarily agreed to by both participants. Full disclosure of all assets and liabilities must be made at execution of the agreement and lastly, the agreement must be validly executed by having both parties’ signatures notarized.

    Keep in mind, everyone has pre-marital agreement; it’s whether you wrote it, or the Commonwealth of Pennsylvania wrote it.

    ➢ Estate planning

    Where there’s a Will, there’s a way! You cannot “opt out” of estate planning. Whether you know it or not, you have an estate plan right now. If you did not draft an estate plan, the laws of the state you live in will govern your estate through its intestacy laws.
    At a minimum, I recommend the following documents for my LGBTQ clients:

    • Powers of Attorney:  A Health Care Power of Attorney is critically important if you want your partner to act for you should you become incapacitated. You also need a Durable Power of Attorney. This gives someone power over your affairs, such as businesses, finances and real estate.

    • Advanced Directive: A “Living Will” enables you to provide instructions to physicians relating to prolonged life support in the event of incurable illness.

    • HIPAA Authorization: In the past few years, the law has changed to guarantee a higher right to privacy regarding patient health information. Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), specific authorization is now required to permit medical personnel to release “protected health care information.” If you do not have this authorization, it could potentially create a problem in the event a physician needs to release medical information in order to activate healthcare powers of attorney.

    • Hospital Visitation Authorization Form: This short document allows you to visit your partner in any medical or treatment facility, and depending on the couples’ wishes, it can also grant you the power to dictate who is allowed in the hospital room to visit your partner.

    • Pet Care Directive:  These directives became much more popular after Hurricane Katrina. It is a document that provides for who will take care of your pet should anything happen to you. Moreover, it lists what veterinary practice the pet attends and can leave sums of money in order for your agent to properly care for your pet.

    • Last Will & Testament: Without a Will you are subject to the intestacy laws of your state. These laws adversely impact LGBTQ couples because they define “heirs at law” as legal next of kin, blood relatives or adopted children.

    If you prepared estate-planning documents prior to getting married, have your plan reviewed by an attorney. Married couples enjoy impactful and robust privileges and benefits in estate planning and as such, your “pre-marriage” estate plan likely needs an overhaul. If nothing else, I recommend re-executing your estate-planning documents so that the definition used in the documents reflects your legal relationship — spouse, husband/husband or wife/wife.

    ➢ Family planning  

    There is currently a proposed Pennsylvania Assisted Reproductive Technologies Act floating around in Harrisburg, but as of now, there is no statute governing parentage in Pennsylvania for children born through assisted reproductive technologies. Until there is, nothing other than legally forming the “child-parent” relationship through a kinship adoption will confer a parent-child relationship between a non-biological parent and his or her child. Through an adoption, the couple receives an Adoption Decree, and that document confers a legal parent-child relationship. The document clarifies many rights and obligations such as decision-making in medical situations, custody and child support, and inheritance rights.

    There are many other ways to grow your family including private adoption or foster care. Regardless of how you create your family, each has its own set of issues to address, so I urge you to consult with an attorney about your specific situation.
     
    ➢ Taxes — marriage bonus or marriage penalty?

    Everyone who gets married is either in a marriage-bonus or marriage-penalty situation as it relates to taxes, so the first step is to review your tax withholding status.

    Does your new status make you eligible for more tax deductions or does your combined income with your spouse put you in a higher tax bracket? If so, you might need to change your withholding allowances. TurboTax has a great W-4 calculator that makes it easy to see how many withholding allowances you should take to boost your tax refund — or your take-home pay.
    In most cases, married couples see a marriage bonus when they file as married filing jointly. However, depending on your individual tax situation this year, it might make sense to see which filing status (married filing jointly or married filing separately) gives you the biggest tax refund.  

    If you file jointly, your spouse’s tax breaks are yours as well. Make sure that you review your tax breaks from the past year. If you just got married, you might be able to take advantage of your spouse’s generous charitable donations to help lower your bill. Consider investment losses, dependent-care credits, education credits, mortgage interest and other tax breaks. Go back through the finances for both of you and identify your joint tax breaks — and see if you have time to rack up a couple more tax breaks before the end of the year.

    ➢ Real property

    If you and your partner owned real estate prior to tying the knot, you must retitle your deed to “Tenants by the Entirety;” which is a special type of joint ownership only permissible between spouses. When one spouse dies, the surviving spouse immediately becomes the sole owner of the property and the property passes outside of probate and it is completely creditor protected.   
    Lastly, if you and your partner own property in multiple states, it is highly recommended that you obtain a Revocable Living Trust to avoid passing through probate in each state in which you own property. This can save you several thousands of dollars in probate fees and several months in the probate process.

    ➢ Changing your name after marriage

    Many new spouses choose to change their name for traditional and symbolic reasons. If you do decide to change your name, you’ll need to do this in addition to the marriage license paperwork and you’ll have to notify a handful of different agencies.

    Changing your name with Social Security is your top priority. You can’t apply for a new social security card online, so you’ll need a certified copy of your marriage certificate and birth certificate (or other proof of citizenship) and either mail the application or bring it to the Social Security office in person.  

    Secondly, you’ll need a new driver’s license. I recommend waiting until you have your new Social Security card and taking that along with your birth certificate, marriage license and current driver’s license to the DMV in your area.  

    Once you have your new Social Security card and Driver’s License, you can easily obtain a new passport, update credit cards, etc.
    CONGRATS – you’re done!

    This may seem like a long list of To Do’s, but please do not be overwhelmed. There is no perfect timeline. And ultimately, most of us just figure it all out as we go. With that said, knowing in advance what to expect can help streamline the process and make it a little easier. 

    Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in New Jersey and Pennsylvania and specializes in LGBT law, family law, business law, real estate law and civil rights. Her website is www.giampololaw.com and she maintains a blog at www.phillygaylawyer.com. Reach out to Angela with your legal questions at 215-645-2415 or [email protected].

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