top ten considerations for already married, now recognized LGBT couples

Do you live in Florida, but married your same-sex spouse in another jurisdiction?  

You DO NOT need to remarry in Florida, which means you do not need a Florida marriage license or a ceremony.  Your marriage validly entered into elsewhere will be automatically valid in Florida without any further action by you.

If you are already married or have decided to get married and you own property, have or want to have children, file taxes, plan to retire, or have other financial issues, here are our Top 10 considerations for you to discuss with your attorney and tax advisor.  There are many new rights and benefits you can now take advantage of.  There are also  obligations that come with marriage.  Many of these rights, benefits and obligations are not automatic and do require further steps on your part.  Here are some steps you should consider taking:

1. Marital and Estate planning

If you have your estate plan in place, you should make sure everything there still makes sense and represents your current intentions. If you die intestate (without a will or trust in place), Florida law dictates how your estate will be distributed. Some spousal rights on inheritance are automatic and others are not, so you may wish to create or modify your existing estate plan. It's critical for married and unmarried couples to have estate planning in place to be sure their wishes are clear and that alternate fiduciaries, beneficiaries, and designates for health care surrogates and the like are named in case you are traveling and in a state or country that does not recognize your marriage. Also, if you are not a fan of letting Florida legislators dictate how your income and assets would be divided in the event you should divorce or die, we can change those automatic rights through a postnuptial agreement and an estate plan. It doesn't mean you're breaking up, only that you want to spell out different intentions than the law would provide.

2. Income Tax filing

The federal government has recognized your marriage for tax purposes since 2013, so hopefully you've been filing your taxes together since then if you were married already.  If you haven't before, you'd better start doing so now. Your tax professional will run the numbers and see if it's advantageous to retroactively amend your returns to reflect the marriage for up to the prior 3 years, depending on your date of marriage.  For more information, see the Internal Revenue Service's FAQs on point here.

3. Parenting

Being married doesn't automatically give you parental rights for your spouse's child. If your spouse has children already, and you and your spouse wish to exercise co-parental rights over the children, you need a stepparent adoption to obtain those rights. If you are married and planning to have children, you will benefit from a legal presumption that you are the legal parent of that child born into the marriage. However, the consensus among attorneys and activists doing legal work with LGBT families is that this presumption could be challenged in court in the event the marriage is dissolved.  It is prudent to take the legal steps necessary to obtain legal recognition of the joint desire to co-parent the children born during the marriage and do a second parent adoption, which we also refer to as a confirmatory adoption since it is confirming the parental rights which ought to exist.

4. Retirement accounts

Your spouse has automatic rights to your pension and all qualified retirement plans. Be sure s/he is listed as a spouse so that s/he can take advantage of rollover benefits if you should pass away. Many who have worked with the State of Florida on any level have retirement benefits with the Florida Retirement System (FRS). FRS did not allow you to designate your non-legal spouse prior to marriage recognition but now that Florida recognizes your marriage, you should be able to amend your beneficiary designation form to include your spouse, if you so desire.

5. Retitling property

Before your marriage was recognized, if you wanted to own property jointly it would either be as tenants in common or joint tenants with rights of survivorship.   Now you can own as tenants by the entireties, a special category for Florida married joint owners of property.  This special form of ownership provides greater creditor protection and also cannot be severed without the consent of the other spouse. These benefits apply to real property (your home) and also to your investment accounts. 

6. Social Security and other government benefits

If you're eligible to collect Social Security survivors benefits because your spouse passed away, go ahead and file for those benefits. You can now collect! If you are receiving Social Security benefits based on your own age eligibility, your own work history and health, getting married will not affect those payments. For more information on these benefits that are critical for so many of us, see the Social Security Administration's FAQ for same-sex couples here.  There are other great benefits you'll enjoy now like Family Medical Leave Act protection should you need to take time off work to care for your spouse, and COBRA guaranteed continuation of medical coverage for your spouse. If you are military, whether active service or a veteran, you'll want to look into the myriad benefits now available to you as well.

7. Insurance Coverage

Most likely your private group employer health insurance plan is available for married employees so go ahead and enroll! You can allege that the recognition of your marriage is a triggering event such that you need not wait for the open enrollment period to make the change. Also, homeowners and auto insurance policies sometimes provide for benefits to married couples so it's worthwhile to call up and advise them of your marital status and see if any discounts or better policies are available.

8. Name Changes

Depending on where you got married, you might have checked off a box indicating you want to change your last name. The State of Florida should now honor that request so head over to the local DMV office with your marriage certificate and change your name on your driver's license, if you so choose.

9. Financial Aid

If you are applying for student aid and you're married, or you have a child who is applying for aid, your household income is joined so be sure you include both incomes.

10. Divorce

No list about what is now available to you as a married couple would be complete without touching on one of the most important benefits of marriage: namely, divorce! If you wish to move on to solemnize another relationship, it's critical that you formally terminate the prior one so that you do not risk bigamy charges, which would also make your new marriage void and not eligible for recognition in the State of Florida. If you can't agree on the division of your assets and debts, the court will impose its own vision of what constitutes equitable distribution, so it's best to try to work it out between you. To save money and heartache on a prolonged adversarial divorce, consider using a lawyer trained in the collaborative divorce process, which you can learn more about here.   Our firm is trained in the collaborative divorce process.



This is only intended to be a basic outline of some of the issues that might arise.  This is not a substitute for legal advice. If you would like to schedule a meeting to discuss your situation and how our firm can assist you, call the office at 305.674.9222 or email to arrange a consultation with Elizabeth Schwartz.