DOMA ON DEATH’S DOOR: Utah’s Ban on Gay Marriage Struck Down. Gay marriage court ruling paves way for Florida law to be struck down.

The Defense of Marriage Act, struck down by the U.S. Supreme Court in June of 2013, continues to die a slow death. DOMA is dying.  But DOMA is still around, in some form.   Another nail in DOMA’s coffin occured in Utah.  The Wall Street Journal, www.wsj.com, reports that “A federal judge on Friday struck down Utah’s ban on same sex marriage.”

Utah, like Florida, banned same sex marriage. Florida law has a Constitutional amendment, and also statutes, which discriminate in favor of straight or heterosexual couples. Florida, like Utah, does not let gay people marry. No same sex marriage in the Sunshine State. But that could all change, as, slowly, states enact laws which permit same sex couples to marry, and courts overturn laws which outright prohibit gay marriage. Could Florida be next?

A federal judge in Utah found no compelling reason why same sex couples should be prohibited from marrying in Utah. Such a law violates our U.S. Constitution.  Didn’t the US Supreme Court say something like that in June?  Yes.  So why are there still court cases about DOMA or about same sex marriage?  Some states, like Utah and Florida, have laws on the books that prohibit gay marriage.  To be struck down, they need to be amended or repealed, which can only happen by an act of the legislature that is signed by the Governor.  Or, the public could have a referendum.  Neither of those will be successful in Florida.  So, it falls to the courts of Florida to uphold DOMA’s death, as proclaimed by the US Supreme Court.  Enter the lawyers………..

Florida’s laws which do not permit gay couples to marry, and which prohibit same sex marriages, don’t just restrict a gay Florida resident from the right to marry. There’s a lot more to at stake than DOMA-like issues of “let’s define a marriage as between a man and a woman.” There are millions of dollars, probably billions of dollars, at stake, in Florida inheritance rights and Florida estate rights. There is going to be a some big probate litigation lawsuits in Florida, when children of a gay man or woman, or a parent, challenge the survivorship right of a gay Florida spouse: a surviving spouse of a gay couple who were married in a state such as Massachusetts or Hawaii or California, which permits same sex marriage.

You can just see the probate litigation lawsuit coming down the pike: a gay man or woman was married to his or her gay partner. The partner dies a Florida resident with a sizable Florida estate. But the dead gay person either didn’t plan his or her estate properly or didn’t get the will or trust which would have been helpful signed. So the surviving spouse of the same sex couple files Florida probate documents seeking to claim his or her Florida inheritance rights. Like? Like a Florida elective share election, or a petition for a 50% or 100% stake in the estate, because the surviving spouse of the gay marriage is either a “pretermitted heir” or is the sole heir under Florida’s “intestacy” laws.  Homestead petition for the Florida residence. Florida family allowance.  Florida exempt property.  Tenancy by the entirely property.  Lots of money at stake in Florida estates and Florida probate. Probate courts in Palm Beach to Broward to Miami will be swamped one day with people who previously had no inheritance rights in Florida.

DOMA is on death’s bed. But there are few more battles in the inheritance war. Florida is one battlefield for gay marriages and same sex marriages. And all the inheritance rights which Florida offers.