How does legality of marriage change things?

How does legality of marriage change things? By Eleanor Doermann

If you are in a same-sex relationship in Washington (or think that you might be in the future) you may be wondering how the legality of same-sex marriage might change your life, now that you can choose that path. It goes without saying that marriage is more than a bundle of legal rights and responsibilities, and in fact the law had very little to say about how LGBT folks went about our relationships, for better and for worse, until recently. Now, marriage equality brings an outside authority to the relationship table, and it remains to be seen how much of a cultural adjustment this will be for the LGBT community.

What difference does the legality of marriage actually make? After all, LGBT couples have made life commitments to each other without the recognition of law for a long time. The first big difference is that state laws about ownership of property in marriage will now apply. Washington is a community property state, which means that the property and debt of spouses are categorized as separate (belonging separately to one spouse) or community (belonging jointly to both), and this separate or community character is determined by when you acquire it: before, during, or after marriage. This matter of timing even trumps whose name is on the title of property. Please note that Washington now applies these same rules to registered domestic partnerships.

Why does it matter whether your property is community or separate? It matters in how your property is divided in divorce, which property you can pass on to others in a will, whether one or both of you needs to participate in buying and selling of your property, which property is available to creditors who are trying to collect a debt from one or both of you (including if you file for bankruptcy), and whether you or your spouse qualifies for certain public benefits. The general rules are as follows, with some exceptions.

Acquired Before Marriage:

• Property acquired by either spouse before marriage is considered his or her separate property going forward, unless it becomes commingled (mixed in) with community property during the marriage.
• Debt incurred by either spouse before marriage remains his or her separate responsibility, unless it becomes commingled with community debt.

Acquired During Marriage:

• Income and property acquired during marriage by either spouse is community property belonging equally to both, with the exception of a separate gift or inheritance. Separate property must not be commingled with community property if the person who received it wants to keep it separate.
• Debt incurred by either spouse during the marriage is the liability of both.

Acquired After Marriage:

• Income and property acquired after separation by either spouse is his or her separate property.
• Debt incurred after separation is usually the separate liability of the one who incurred it.
• If debt from during the marriage is in both spouses’ names, but the debt is allocated to one of you in a divorce settlement, creditors can still try and collect from both of you.

Unfortunately few married couples of any gender combination enter into marriage knowing about how community property works, and only learn when something negative happens. Understanding the rules going into marriage, however, allows a couple to change some of the default rules by making formal, written agreements about what property will be separate and community. A mutual verbal understanding between the two of you is not enough, and you cannot make such an agreement for the primary purpose of evading creditors.

In future posts, I will address an additional complication for long-established same-sex couples in Washington who need to figure out when their community property clock started, given all the different definitions of these relationships over the years. I will write about how Washington law defines who is a legal parent. Stay tuned!

Disclaimer:  This information is for educational purposes only and is not a substitute for competent legal advice from a licensed, professional attorney regarding your specific situation.

Eleanor Doermann is an attorney providing estate and life planning services for all ages and stages of life, and public benefits advocacy. As a long-time member of the Seattle LGBT community, she has a special interest in and passion for educating individuals and couples about the ramifications of post-DOMA marriage equality law.  Eleanor came to the practice of law after a 25-year-career as a physical therapist. She opened Pathway Law, PC in south King County in 2013. You can learn more at www.pathwaylaw.net or by calling 206-499-3289.