Can same-sex couples marry in Massachusetts?

Yes. In an historic decision, the Massachusetts Supreme Judicial Court ruled on November 18, 2003, that same-sex couples have the right to civil marriage in Massachusetts. The holding in GLAD’s case, Goodridge v. Department of Public Health, was the first of its kind in this country by a state high court. Marriages began to take place in Massachusetts on May 17, 2004. For information about how to get married in Massachusetts, see: Getting Married in Massachusetts |

Can Massachusetts same-sex couples get married anywhere else?

Yes. Thanks to Obergefell v. Hodges, all states are required to issue marriage licenses to same-sex couples.

Will Massachusetts respect my marriage? Will other states?

Yes. The Obergefell v. Hodges decision guarantees that all states and the federal government must treat same-sex married couples identically to different-sex married couples. That means that all the protections, rights, and obligations that states and the federal government provide to different-sex married couples must also be provided to same-sex married couples. 

Will the federal government respect my marriage?

Yes. The Obergefell v. Hodges decision guarantees that all states and the federal government must treat same-sex married couples identically to different-sex married couples. That means that all the protections, rights, and obligations that states and the federal government provide to different-sex married couples must also be provided to same-sex married couples. 

What happens if we need to end our marriage?

After Obergefell v. Hodges, same-sex spouses everywhere can dissolve their marriages on the same terms as different-sex spouses. Massachusetts explicitly applies its divorce statutes to same-sex couples.

However, spouses should note that when Massachusetts courts divide marital property and award alimony, one of the factors a judge considers is length of marriage. Unfortunately for spouses whose partnership pre-dates marriage equality, the length of the marriage may not accurately reflect the true length of the relationship, resulting in an unbalanced division of assets. With regards to alimony, Massachusetts courts may (but are not required to) consider a couple’s premarital cohabitation if there is evidence of economic partnership. If you are going through divorce proceedings in Massachusetts and believe your division of assets may be unfairly affected by the length of the marriage, contact GLAD Answers for referrals to attorneys in GLAD’s Lawyer Referral Service.

Can I obtain Social Security survivor benefits if my spouse dies?

Yes, because as stated above, same-sex married couples are entitled to all the benefits provided to different-sex married couples.

However, until the Obergefell v. Hodges decision on June 26, 2015, many same-sex couples lived in states where unconstitutional marriage laws prevented same-sex couples from getting married. So when their spouse passed away, they could not meet the Social Security survivor benefit condition of having been married for nine months.

To correct this unfairness, Lambda Legal filed two lawsuits, Ely v. Saul and Thornton v. Commissioner of Social Security, and was successful in obtaining a way for same-sex couples to file for Social Security survivor benefits who either never married (Ely v. Saul) or were finally able to marry but were married less than nine months when their spouse passed away (Thornton v. Commissioner of Social Security). 

These two rulings allow same-sex couples to apply because discriminatory state laws excluded them from marriage, and consequently were not eligible to apply for Social Security survivor benefits. However, the success of that application rests on providing enough documentation to prove to Social Security that they did not meet the nine-month requirement only because of the discriminatory state laws.

The following link gives more detailed information and has FAQs for each lawsuit, and lists some of the ways you might be able to provide the documentation needed to qualify for the survivor benefit: Information for Surviving Same-Sex Partners and Spouses Previously Excluded from Social Security Survivor’s Benefits Because of Unconstitutional State Marriage Laws | Lambda Legal

What steps can a couple take to legally safeguard their relationship in Massachusetts?

Various legal documents can protect a couple’s relationship, regardless of whether the couple has no formal legal relationship or is already in a marriage.

  1. Relationship Agreement or Contract: A couple has the option of drafting a written cohabitation agreement, outlining their respective rights with regards to property, finances, and other aspects of their relationship. The Massachusetts Supreme Judicial Court has held that ordinary rules of contract law generally enforce and respect these agreements. Although such agreements may concern the custody and support of children, a court will not uphold any agreement it finds to go against the child’s best interests. Finally, couples should note that if they eventually marry, a previous relationship agreement will likely no longer be valid, and any post-marital agreement will be enforceable only to the extent that it is fair and equitable to both parties.
  2. Power of Attorney: A couple can choose to grant each other the durable power of attorney, allowing one partner to make financial decisions on the other’s behalf in the event of incapacity or disability. The requirements are minimal: any competent person may appoint another person as their “attorney-in-fact.” If no such appointment is made, a family member will be empowered to make decisions for the incapacitated individual.

If one partner is incapacitated or disabled, the other partner may petition the court to be appointed as their guardian to make decisions on their behalf. Unless good cause dictates otherwise, a court should grant guardianship to whoever has durable power of attorney over the incapacitated person. Thus, couples are encouraged to grant each other durable power of attorney if they believe guardianship will one day be necessary. It is important to note that a court can reject an individual’s choice only for good cause—a court should not substitute its own judgment just because a family member objects to the appointment.

  1. Health Care Proxy: A couple can also choose to appoint each other as health care proxies, allowing them to make medical decisions on one another’s behalf in the event of an emergency. Absent a health care proxy appointment, medical care providers look to next-of-kin to make health care decisions for an incapacitated individual. Thus, if an unmarried couple wants to make decisions for one another, they need a healthcare proxy. Healthcare proxies can be revoked at any time, either by creating a new healthcare proxy or by a clear expression of revocation. People often give a copy of the health care proxy to their doctors, and sometimes to family members. You can find a sample Health Care Proxy form here: Massachusetts Medical Society: Health Care Proxy Information and Forms.
  2. Will: Without a will, a deceased unmarried person’s property passes to (1) their children; (2) their family; (3) if next-of-kin cannot be located, to the state. A will is essential if a person wishes to provide for others, such as their partner. Even if a person has few possessions, they can name in the will who will administer their estate. If a person has children, they can also nominate the future guardian of the child in a will.
  3. Funeral Planning Documents: A person’s body is given to their next-of-kin upon death. This can mean that a person’s own partner has no right to remove the body or make plans for a final resting place. But if a person leaves explicit written directions giving another person (such as their partner or a friend) control over the funeral and burial arrangements, they can avoid confusion. Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters, as well as to family members.
  4. Living Will: Within a health care proxy, the individual may insert language stating what the individual wishes about termination of life support, preferences for types of medical care, or limits on the agent’s authority.
  5. Temporary Agent or Guardianship: Parents, particularly those with life-threatening illnesses, may either appoint a temporary agent for a period not exceeding 60 days, or appoint a guardian whose appointment takes effect when the parent dies or cannot care for the child. Within 30 days after the appointment of a guardian, the guardian must petition the Probate and Family Court for confirmation of the appointment. The parent has the right to revoke the powers of the temporary agent or guardian at any point.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.

Although forms are available, they may not be suited to your individual needs and wishes. Moreover, an attorney may be better able to help effectuate your goals, for example, by drafting a will in a way that is more likely to deter a will contest by unhappy family members, or an appointment of a health care agent with precise instructions. In addition, an attorney may help to navigate the legal uncertainties flowing from the areas of overlap between these documents. GLAD Answers can provide referrals to attorneys who are members of GLAD’s Lawyer Referral Service.

What standards should same-sex couples with children who are breaking up maintain?

Same-sex couples with children who are breaking up should:

  1. Support the rights of LGBTQ+ parents
  2. Honor existing relationships regardless of legal labels
  3. Honor the children’s existing parental relationships after the breakup
  4. Maintain continuity for the children
  5. Seek a voluntary resolution
  6. Remember that breaking up is hard to do
  7. Investigate allegations of abuse
  8. Not allow the absence of agreements or legal relationships to determine outcomes
  9. Treat litigation as a last resort
  10. Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result

For more detailed information about these standards, visit Protecting Families: Standards for LGBTQ+ Families.