Marriage | Rhode Island
Can same-sex couples legally marry in Rhode Island?
Yes, after many years of failed attempts and nearly two years after the passage of a civil unions bill in July 2011, on May 2, 2013, the Rhode Island General Assembly approved and Governor Lincoln Chafee signed a marriage equality law, An Act Relating to Domestic Relations-Persons Eligible to Marry (see http://webserver.rilin.state.ri.us/BillText/BillText13/HouseText13/H5015B.pdf), that extended the right to marry to same-sex couples effective August 1, 2013.
That legislation also ended the ability of same-sex couples to enter into civil unions in Rhode Island on that same date and allows any couples already in a Rhode Island civil union to keep their civil unions or merge their civil unions into marriage (R.I. Gen. Laws § 15-3.1-12).
Two years later, in Obergefell v. Hodges (135 S.Ct. 2584 (2015)), the U.S. Supreme Court made marriage equality a reality nationwide when it held that the U.S. Constitution guarantees same-sex couples the right to marry. GLAD’s own Mary Bonauto represented the plaintiffs during oral arguments. Post-Obergefell, all 50 states are required to issue marriage licenses to same-sex couples, and all states must respect the marriages of same-sex couples performed in other jurisdictions.
Can Rhode Island 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.
How does one get married in Rhode Island?
The process for getting married in Rhode Island requires the following basic steps:
- If at least one party is a resident of Rhode Island, the couple must obtain a license from the clerk in the city or town where either party lives. If neither party is a resident of Rhode Island, the couple must obtain a license from the clerk of the city or town where the proposed marriage is to take place (R.I.Gen. Laws § 15-2-1).
- The couple must have the marriage solemnized (i.e. have a ceremony which is witnessed by at least two people in addition to the officiant) within 3 months of obtaining the license (R.I. Gen. Laws § 15-2-8 and § 15-3-8).
- Once the ceremony has been performed, the person who performed it has 72 hours to return the license to the city or town where it was issued (R.I. Gen. Laws § 15-3-12).
- The clerk will then file the original, and the couple can receive an official certificate of their marriage.
For more detailed information see the GLAD Publication, Rhode Island Marriage Guide For Same-Sex Couples.
How does religion affect getting married in Rhode Island?
The Act also reiterates the right of any religion to set any requirements it chooses on who may marry within that religion and the right of any clergy person, rabbi or similar official to refuse to marry any couple. It also provides further exemptions for religiously-controlled organizations and fraternal benefit organizations.
For some additional information see the GLAD Publication, Rhode Island Marriage Guide For Same-Sex Couples.
How will the marriage of a same-sex couple be respected?
Rhode Island will respect the legal marriages of same-sex couples regardless of where the marriage was performed, just as all states will now respect the marriage of a same-sex couple married in Rhode Island.
What steps can a couple take to legally safeguard their relationship in Rhode Island?
There are various legal documents that can protect a couple’s relationship, regardless of whether the couple has no formal legal relationship or is already in a marriage.
- Relationship Agreement or Contract: Cohabitation agreements regarding property and finances are a good way for couples to sort out their affairs in writing before a separation. As long as the contract is not about sexual services, it has a good chance of being upheld as valid as long as it complies with the requisites for a valid contract. Bear in mind that, as in any state, specific provisions concerning children may or may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children. (See discussion below concerning parenting agreements.)
- Power of Attorney: Any competent person may appoint another person (such as one’s partner) as their “attorney-in-fact” for financial matters in the event that one becomes incapacitated or disabled. The law provides a “short form” which allows you to mark the kinds of transactions you wish your partner (your “attorney-in-fact”) to perform. These include: (a) real estate transactions; (b) chattel and goods transactions; (c) bond, share and commodity transactions; (d) banking transactions; (e) business operating transactions; (f) insurance transactions; (g) claims and litigations; (h) benefits from military service; (i) records, reports and statements; and (j) all other matters. If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. This power of attorney does not include health care decisions.
- Health Care Power of Attorney: Since medical care providers look to next of kin to make health care decisions for an incapacitated individual, an unmarried person must appoint a health care agent if he or she wishes another person to make those decisions instead of the family member. Under R.I. Gen. Laws § 23-4.10-2, a person may appoint a health care agent to make decisions — whether for a limited amount of time or indefinitely. The attorney-in-fact may then make decisions for you — either immediately or upon your becoming incompetent to make decisions. Even after you give another person a Health Care Power of Attorney, you may make decisions for yourself if that is what you wish and as long as you are competent to do so. The statute provides a “statutory form” that you can use for your Health Care Power of Attorney.
The power of attorney can specify the authority of the agent to make decisions on your behalf, and also state what kinds of treatments you do not desire, including treatments which might keep you alive. You can also specify your wishes regarding organ and tissue gifts after death.
The power of attorney must be signed either by one notary public or by two witnesses. None of these signers may be your designated or alternate agent; a health care provider or a health care provider employee; or the operator of a community care facility or an employee of such a facility. The power of attorney can be revoked at any time by creating a new power of attorney or by a clear expression of revocation. People often give a copy to their doctors and sometimes to family members.
- Living Will: Within a durable power of attorney for health care, language may be inserted stating what the individual wishes regarding termination of life support, preferences for types of medical care, or limits on the agent’s authority.
- 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. If you wish to provide for others, such as your partner, a will is essential. Even if you have few possessions, you can name in the will who will administer your estate. If you have children, you can nominate their future guardian in a will.
- Funeral Planning Documents: Rhode Island permits a person to name another as his or her “funeral planning agent” with sole responsibility and authority to make any and all arrangements and decisions about funeral services, and burial or disposition of remains, including cremation. The document must be signed by the individual and should be notarized. To prevent any disputes with family members, it is preferable to give the instructions to the person you want to take care of matters, as well as to family members.
Even absent these documents, a surviving same-sex partner who can prove that their relationship satisfied the state criteria for being “domestic partners” (read the “Domestic Partnership” section above) can also assume control of the funeral and burial process.
However, this requires proving certain facts about your relationship at a time of tragedy and does not control if someone else has been appointed as the “funeral planning agent.” The best way to ensure that your partner is able to make these decisions is to name your partner your “funeral planning agent.”
In 2018, Rhode Island passed a law that requires the death certificate to reflect the gender identity of the decedent as reported by the next of kin, or the best qualified person, or by a document memorializing the decedent’s wishes. To ensure that this happens, it is best to give the person you appoint as your “funeral planning agent” a notarized document that attests to your gender identity.
Does a person need an attorney to get these documents?
GLAD recommends working with an attorney on these documents.
Although forms are available, the form may not be suited to your individual needs and wishes. Moreover, an attorney may be able to better help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or an appointment of a health care agent with very specific 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.
Will other states and 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 in an identical way 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.
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 were not able to meet the Social Security survivor benefit condition of having been married for 9 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 9 months when their spouse passed away (Thornton v. Commissioner of Social Security).
These two rulings allow same-sex couples, who were excluded from marriage because of discriminatory state laws and consequently were not eligible to apply for Social Security survivor benefits, to submit an application. However, the success of that application rests on providing enough documentation to prove to Social Security that the only reason they did not meet the 9 month requirement was 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 happens if we need to end our marriage?
After Obergefell v. Hodges, same-sex spouses everywhere should be able to dissolve their marriages on the same terms as different-sex spouses. Rhode Island applies its divorce statutes to same-sex couples.
However, spouses should note that when Rhode Island courts divide marital property and award alimony, one of the factors a judge considers is the length of the marriage (R.I. Gen. Laws §15-5-16(b) (alimony) and § 15-5-16.1(a) (division of property)). The judge cannot include as marital property, property held in the name of one spouse if held by that spouse prior to marriage (R.I. Gen. Laws §15-5-16.1(b)). Unfortunately for spouses whose partnership predated marriage equality, the length of the marriage may not accurately reflect the true length of the relationship, resulting in an unbalanced division of assets.
If you are going through divorce proceedings in Rhode Island and believe your division of assets may be unfairly affected by length of marriage, contact GLAD Answers.
What standards should same-sex couples with children who are breaking up maintain?
Same-sex couples with children who are breaking up should:
- Support the rights of LGBTQ+ parents;
- Honor existing relationships regardless of legal labels;
- Honor the children’s existing parental relationships after the break-up;
- Maintain continuity for the children;
- Seek a voluntary resolution;
- Remember that breaking up is hard to do;
- Investigate allegations of abuse;
- Not allow the absence of agreements or legal relationships to determine outcomes;
- Treat litigation as a last resort; and
- Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.
For more detailed information about these standards see the publication Protecting Families: Standards for LGBTQ+ Families at: Protecting Families: Standards for LGBTQ+ Families.
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