In Pennsylvania, same-sex couples face unique legal challenges because even if they consider themselves a married couple, they are not legally allowed to marry. Even same-sex couples who are legally married in a different state are not recognized as a legally married couple in Pennsylvania. This means the default rules that apply to opposite sex married couples do not apply to same-sex couples. Therefore, same-sex couples should take the time to plan their financial and personal affairs going into their committed relationship and should be aware of the legal remedies available (or not available) if their relationship ends.
If an opposite sex couple gets married without a prenuptial agreement, the divorce code provides default rules for how their property will be divided and how they may be required to help each other meet their reasonable financial needs and expenses if they get divorced. These default rules do not apply to same-sex couples. Same-sex couples whose relationship ends without a prior agreement in place are treated as strangers or business partners when it comes to dividing property. There is no provision for same-sex couples to have any responsibility for helping each other meet their own reasonable expenses if their relationship ends.
If an opposite sex couple gets married and does not provide for their estate planning, the estate code provides default rules for how their property will be divided in the event that one or both of them pass away. Those default rules automatically include the spouse as a beneficiary of the deceased spouse’s estate. These default rules do not apply to same-sex couples. When one partner in a same-sex relationship passes away without specific estate planning documents in place, the other partner is not included as a beneficiary of the estate. Unless the deceased partner has specifically provided for his or her partner in their will, that partner is considered a stranger and will not inherit from the estate.
The lack of default rules for same-sex couples places an additional burden on these couples to plan ahead in their relationship. If same-sex couples are going to commit themselves to a relationship and live as married partners, they must establish in advance the parameters of what will happen if their relationship ends for any reason. The good news is that same-sex couples are free to establish their own rules and guidelines for what will happen if their relationship ends, without the artificial constraints of the divorce code.
One additional area in which same-sex couples must actively plan is their health care decision-making. If one spouse in an opposite sex marriage is unable to make decisions about his or her health care, the other spouse is a default decision-maker. That rule does not apply to same-sex couples. If one partner in a same-sex relationship is unable to make health care decisions for him or herself and has not specified their partner as the decision-maker, that partner will not be automatically included in health care decisions.
Until same-sex marriage becomes legal in Pennsylvania, same-sex couples in committed relationships who wish to live as if they are legally married must take the proactive steps to establish the parameters of that married relationship. In these vital areas, the cards are stacked against same-sex couples but the situation can be remedied with a little planning.