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Gay And Lesbian Legal Rights In The State Of New York

In 2011, New York State signed into law the Marriage Equality Act, which provided gender-neutral marriages. Whether the couples were same-sex or opposite sex, it provided both equal protection under the law. The law took effect on July 24, 2011.

Prior to this ruling, New York only recognized same-sex marriages performed in other legally-sanctioned states and countries. New York State did not perform such ceremonies, and legally, same-sex couples were afforded the rights as those couples falling under the category of unregistered cohabitation. Some municipalities also afforded same-sex couples domestic partnership status.

Marriage Equality Act

On June 24th, 2011 New York became the 6th state to allow same-sex couples to marry. While same-sex marriages hold the same rights as opposite-sex marriages, this law broke legal ground by writing out all the terms that were afforded to opposite-sex couples when they get married, including the legalities of wills, intestacy proceedings, spousal support during a marriage and during it’s dissolution, as well as medical issues such as next-of-kin, insurance coverage and major health and life decisions.

Of course, allowing all the rights and privileges to same-sex marriages also included issues such as dealing with spousal debt, spousal support and child custody and support. According to a report done by the Empire State Pride Agenda and the New York Bar Association, there are 1,324 statutes and regulations in New York State that outline the legal rights and duties bestowed upon a married couple. Below are outlined rights given only to married individuals:

  • NY York Public Health law § 2965-2 gives the spouse legal prioritization over parents, children, sibling and friends in the event of a medical condition where one spouse is unable to make pertinent health care decisions.
  • Should one spouse pass away, under NY Estates, Powers & Trusts Law § 6-2.2 and NY Real Property Law § 423 & 423-A, the other spouse is automatically entitled to the joint property, and that the title may pass to them, the living spouse.
  • NY Estates, Powers & Trusts Law § 5-1.1 allows for protection from being disinherited from one’s spouse upon that spouse’s death, as well as allows for the right to take a portion of the deceased spouse’s estate, even if was against their express wishes. Additionally, when there are children involved, NY Domestic Relations Law § 73. 5-1.1-A gives the right to deem a child born to the married couple via artificial insemination as legitimate and natural, and to take that into account when issues such as child custody, visitations and child support come into relevance.
  • If one spouse is a military service person, NY Education Law § 6305 gives the right for the other spouse to attend a New York community college at an in-state tuition rate.
  • During a trial, NY Civil Practice Law and Rules §4502 can prohibit the testimony of one spouse in the incrimination of another, under the law regarding confidential communication between spouses.
  • NY General Obligations Law §5-311 requires that when spouses divorce, the higher-earning spouse provide spousal support if it means that otherwise, the lesser-earning spouse would be unable to support themselves and would, as a consequence, likely end up being supported by the state.

It’s important to remember that while unmarried couples may, under some circumstances such as via an agreed upon contract and or a will’s designation, gain these rights, they are not inherent unless there is a marriage contract. Those in a same-sex relationship are particularly vulnerable to missing key legal rights and as such, should take the time to adequately prepare and address these issues before marriage. However, some rights may be designated without being married. Below is highlighted some of the rights that, in state of New York, protect unmarried couples.

  • Medical & Healthcare: Adults in a relationship who are competent and of sound mind may choose to designate their (unmarried) partner as the decision-maker, should a major medical or health care issue arise, they become incapacitated and are incapable of making said decision on their own. For more information on this process, please visit the Department of Health’s website and search for the New York Health Care Proxy instructions and forms.
  • Real Estate: If partners have a joint claim to a piece of property, a right of survivorship may be drawn up. It allows the surviving partner to automatically receive the title of the joint property in the event of the partner’s death. However, such an agreement is very stringent in it’s requirements and must be drawn up pursuant of NY Estates, Powers & Trusts Law § 6-2.2.
  • Inheritance: A will drawn up for unmarried couples is often a smart move, saving time, money and litigation fees. However, the will, which will assign estate in property to the partner, must be drawn up accurately. This generally involves the testator’s signature, witness signature and a statement saying that the will is the testator’s. In order to draw up a valid document that is accordance with in NY Estates, Powers & Trusts Law § 3-1.2, 3-1.3., the partner may wish to seek legal council for the drafting, revision and execution of the document.

Our attorneys are highly trained and experienced in the area of gay and lesbian issues.