Family Law Impacts of the Same-Sex Marriage in Minnesota

The legalization of same sex marriage in Minnesota has been a hot topic around the state and on this blog over the past few days.  We’ve talked about the celebration surrounding the passage of the bill, and we’ve looked at a history of gay marriage in the United States.  Today, we’ll explore the legal impacts the bill has on family law issues.

As with any marriage, newlyweds are entitled to numerous spousal-related benefits.  Now that same-sex marriage is legalized in Minnesota (starting August 1), gay couples will have more decisions they’ll need to make with their spouse, including:

A right to inherit – According to Minnesota Family Law Attorney Kelsey Swanson, “if a person dies without a will, the spouse will automatically inherit the other spouse’s estate.  Also, if one party has a will but they disinherited their spouse or did not give their spouse enough of the estate, the living spouse can pursue their rightful share under Minnesota law.”

The right to collectBecause same-sex partners can legally get married, spouses will be eligible to collect each other’s pension or social security benefits.  In the event of a divorce or dissolution, a court may award spousal maintenance to one party.

Getting a prenuptial agreement – Gay couples that will soon become legally married can consider drafting a prenuptial (also known as an antenuptual) agreement.  “While gay couples in the past could divide property per a partition action, Minnesota law treats all assets and debts obtained in a marriage as ‘marital.’  All marital assets and debts in a dissolution are dissolved equitably, not equally,” said Swanson.

Recognition of Marriage -  “Previously, if a gay couple came to Minnesota, their marriage simply wasn’t recognized,” said Swanson.  “It was as if they were never married.”

“Additionally, if a couple traveled to another state to be married and moved to Minnesota, it put the couple in a difficult position if they desired to divorce.  While the marriage was already considered ‘void’ since they lived in Minnesota, ostensibly, if the couple traveled back to the state that they were previously married in, they would still be married.  However, states (like Minnesota) usually have stringent residency requirements for seeking a dissolution of marriage.  So, if a couple no longer resided in the state that recognized their marriage, it would potentially be impossible for that state to dissolve the marriage.  Since Minnesota didn’t recognize gay marriage, if the couple were Minnesota residents, they could not get a divorce in Minnesota.”



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