Family | Relationships | Massachusetts

What role did GLAD play in the fight for marriage equality?

GLAD led the fight for marriage equality in the United States. In the beginning, many states, instead of offering marriage to same-sex couples, provided the exact same state rights, protections, and responsibilities of marriage but called them civil unions or registered domestic partnerships.

GLAD’s fight for marriage equality began in Vermont with its lawsuit, Baker v. Vermont. GLAD won the case, but the Vermont Supreme Court allowed the legislature to decide how to implement the decision. Instead of offering marriage to same-sex couples, the Vermont legislature created civil unions. GLAD then won marriage rights for same-sex couples for the first time in the United States in 2004 in its lawsuit, Goodridge v. Department of Public Health. 

This was followed by:

• Maine approved domestic partnerships in 2004, which provided some of the protections of marriage
• civil unions in Connecticut in 2005
• GLAD’s lawsuit, Kerrigan v. Commissioner of Public Health, won marriage rights for Connecticut same-sex couples in 2008 
• civil unions in New Hampshire in 2008
• Vermont provides marriage for same-sex couples in 2009
• Vermont no longer allows civil unions but does not convert its civil unions into marriage in 2009
• marriage in New Hampshire in 2010
• Connecticut converts all its civil unions into marriage in 2010
• conversion of New Hampshire civil unions to marriage in 2011
• civil unions in Rhode Island in 2011
• marriage in Maine in 2012
• marriage in Rhode Island in 2013
• civil unions in Rhode Island ended in 2013, but existing civil unions were not converted into marriage

At the federal level, Congress passed the Defense of Marriage Act (DOMA) in 1996. DOMA was a preemptive attack on same-sex couples stating that if same-sex couples were ever allowed to marry, the federal government would not recognize those marriages. On June 26, 2013, the U.S. Supreme Court decision in United States v. Windsor stated the DOMA was unconstitutional, and same-sex married couples were able to get federal benefits for the first time.

Finally, in Obergefell v. Hodges, on June 26, 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 at 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 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 | Mass.gov.

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 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. 

Does Massachusetts respect civil unions and registered domestic partnerships from other states?

Yes. The Massachusetts Supreme Judicial Court has ruled that Massachusetts courts must give the same respect to civil unions and registered domestic partnerships as marriages, with rights and obligations functionally identical to marriage.

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 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.

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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

If an unmarried couple separates, what is the legal status of a relationship or partnership agreement/contract?

Upon separation, if the couple has a Relationship or Partnership Agreement/Contract, its terms will be invoked, and the couple’s assets will be divided as per the agreement. Without an agreement, unmarried couples may be forced to endure costly and protracted litigation over property and financial matters.

PLEASE NOTE: If you have changed your mind about who should be your “attorney-in-fact,” health care representative, beneficiary or executor under a will, funeral planner, conservator, or designee under a designation document, then those documents should be revoked—with notice to all persons who were given copies of those documents—and new documents should be prepared which reflect your present wishes.

What is domestic partnership?

Although it is a term used in many contexts, “domestic partnership” most often means a status that recognizes an unmarried couple and their children as a family for certain limited purposes, most commonly employee benefits, like health insurance. Some employers still offer these benefits to unmarried couples, although many employers stopped offering these benefits once same-sex couples had the ability to marry.

What kinds of domestic partner benefits may private employers provide?

Private employers can provide many benefits to domestic partners, such as health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities.

Even when employers provide these benefits, though, federal and state laws require different tax treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay federal and state income tax on the value of their partner’s health insurance benefits (unless the partner is a tax dependent), but a spouse does not. Partners do not qualify as spouses under federally-controlled Flexible Spending Accounts unless the partner is also a tax dependent.

As for pensions, under the Federal Pension Protection Act of 2006, employers may amend their 401(k) plans so that non-spouse beneficiaries may retain the asset as a retirement asset. If a plan is so amended, beneficiaries may “roll over” the 401(k) into an IRA depending upon the employee’s death. In contrast, previous law required the beneficiary to take and pay income taxes on the 401(k) as a lump sum.

However, other discriminatory aspects of federal law remain regarding pensions. A domestic partner has no right to sign off if their partner decides to name someone else as the beneficiary of a pension, although a spouse would have that right. In addition, a domestic partner has no right comparable to that of a spouse to sign off on their partner’s designation of another person for survivor benefits.

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.

How does a court generally go about making custody determinations?

When a married couple divorces, the parties are encouraged to make their own agreement about custody and visitation. If they can’t reach an agreement, a Superior Court judge will make a custody and visitation determination based on the child’s best interests. A court considers all relevant factors, keeping in mind a child’s growth, development, well-being, and the continuity and stability of their environment.

In all contested cases, the judge will appoint a family relations officer to investigate in order to help the judge arrive at a decision. The investigation can touch on matters of “parentage and surroundings of any child, [the child’s] age, habits and history, inquiry into the home conditions, habits, and characters of his parents or guardians and evaluation of his mental or physical condition.”

Are there different kinds of custody?

Yes, four kinds:

1. “Sole legal custody” means that only one parent has the right to make major life decisions for the child, including matters of education, medical care, and emotional, moral, and religious development.
2. “Shared legal custody” means that both parents are involved in and make these decisions.
3. “Sole physical custody” means that a child lives with and is supervised by only one parent, subject to reasonable visitation with the other parent, unless a court finds that visitation is not in the child’s best interests.
4. “Shared physical custody” means that the child resides with both parents in a way that ensures frequent contact with both.

If I have a child from a former straight relationship, and I am now involved with a same-sex partner, can my ex use my sexual orientation against me in custody proceedings?

As stated above, Massachusetts courts base custody arrangements on the child’s best interests. Generally, a parent’s sexual orientation or marital status should not affect a child’s best interests.

Nevertheless, your former partner may try to argue that your sexual orientation is detrimental to your child. Many reasons can be cited, such as that the LGBTQ+ parent’s sexual orientation is causing other people to tease or ostracize the child, that the parent is a “bad role model,” or that the parent’s new partner is not “good” for the child. In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way that does not penalize the gay parent or the child. Contact GLAD for further resources for dealing with such a situation.

Is it considered harm to the child if he or she is teased about having a gay or lesbian parent?

It shouldn’t be. One of the additional responsibilities of being a gay or lesbian parent is helping one’s children deal with this possibility or reality. Of course, others can tease children about everything from the size of their ears to their parents’ accent, to their lack of fashion sense. All parents need to help their children develop coping mechanisms and strategies when peer harassment arises.

As a legal matter, particularly instructive is a U.S. Supreme Court case, Palmore v. Sidoti, in which the U.S. Supreme Court reversed a Florida court’s change of custody from the mother to the father. The court switched custody because the white mother was involved with a Black man she later married. The Supreme Court acknowledged the reality of bias and prejudice and that others might tease the child. However, it refused to cater to those prejudices or give them the force of law by changing the previous custody arrangement. In a statement of constitutional principle applicable to all, the Court unanimously stated, “The Constitution cannot control prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”

Does it matter if my ex knew or suspected I was LGBTQ+ before we separated?

It may make a difference for future modification of court orders for custody. People can seek to modify court orders for custody when a change in circumstances alters the child’s best interests. Your former spouse may not have known your sexual orientation or gender identity at the time of the court proceedings but learned of it later. In that case, they may argue that this is a change of circumstances and that the custody issues should be litigated anew.

Of course, if one spouse or former heterosexual partner knew of the other’s same-sex sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.

Can a court keep my kids from visiting when my partner is present?

Visitation restrictions are inherently suspect. In Lawrence v. Texas, the U.S. Supreme Court did more than decriminalize sexual acts. It acknowledged the right of gay people to form and sustain loving personal relationships and lead their private lives free of government restrictions and legal condemnation. Since gay people may make “personal decisions relating to… family relationships [and] child rearing,” custody and visitation restrictions must be handled accordingly. Mere differences in moral values between a court and a parent, presumptions about a gay parent’s conduct, or “social condemnation” of their relationship should no longer be permissible factors, if they ever were.

Courts have the power to do this but should not do so unless it is clearly in the best interests of the child. Connecticut courts have rejected the notion that any particular lifestyle, in and of itself, will harm a child, and so will insist on specific proof.

Resources

History of Same-Sex Marriage in the United States: History of same-sex marriage in the United States – Wikipedia. 

Massachusetts Law About Wills and Estates: Massachusetts law about wills and estates | Mass.gov. 

Divorce: Divorce | Mass.gov. 

Child Custody and Parenting Time: Child Custody and Parenting Time | Mass.gov. 

Cases & Advocacy

To see related GLAD cases or advocacy in Massachusetts, visit GLAD’s MA Family & Relationships or Parenting Cases and Advocacy pages.

News & Press Releases

To see news and press releases about Family in Massachusetts, go to GLAD’s MA Family News page.