When heterosexual couples consider marriage and potentially entering into a prenuptial agreement before tying the knot, they don’t have to worry about where they intend to live after they’re married—their prenuptial agreement will be recognized anywhere they reside in the United States. Unfortunately, this is still not the case for LGBT couples. Why not? The key to whether a prenuptial agreement will be recognized lies in whether the underlying marriage or union will be recognized, and laws concerning prenuptial agreements are highly state-specific.
Many states are now recognizing same-sex unions and marriages; however, many are not. This means that even if an LGBT couple enters into a prenuptial agreement and later decides that they want to enforce their agreement because they are dissolving their relationship, they may be out of luck. They may have unknowingly entered into a prenuptial agreement that was not recognizable from the start.
For example, under Illinois law, prenuptial agreements for same-sex couples are recognized. Ever since June 1, 2011, Illinois has recognized same sex marriages performed in other jurisdictions. This means that even if a couple is married in a different state, such as Hawaii or Iowa, Illinois will undoubtedly recognize their marriage and their prenuptial agreement will likewise be recognized.
Same-sex couples in Indiana, however, are not so fortunate. Under Indiana law, “Only a female may marry a male. Only a male may marry a female. A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.” See Indiana Code Annotated, Section 31-11-1-1. Accordingly, any prenuptial agreement entered into between same-sex individuals will not be recognized in Indiana and will be void, because their marriage will not be recognized.
Other than a prenuptial agreement being recognized or not recognized for LGBT couples, there is also a third possibility: their prenuptial agreement might be recognized only if they first convert their existing marriage or union into a domestic partnership. In California, for example, while same-sex marriages are legal thanks in part to the 2013 United States Supreme Court decision in Hollingsworth v. Perry, which restored the effect of a federal district court ruling that overturned Proposition 8 as unconstitutional, the Family Code, Section 299.2 currently reads: “A legal union of two persons of the same sex, other than a marriage, that was validly formed in another jurisdiction, and that is substantially equivalent to a domestic partnership as defined in this part, shall be recognized as a valid domestic partnership in this state regardless of whether it bears the name domestic partnership.” As applied to same-sex couples, their prenuptial agreement will be recognized in California so long as they first register their marriage or union from a different state as a domestic partnership in California. With a registered Domestic Partnership in California, LGBT couples can have recognized prenuptial agreements and all community property laws will apply, absent contrary conditions being contained in the prenuptial agreement.
While The Uniform Premarital Agreement Act, written by the National Conference of Commissioners on Uniform State Law in 1983 has been adopted in many states and encourages the enforcement of prenuptial agreements, it is important for LGBT individuals to realize that prenuptial agreements are still subject to state-specific laws and may not be recognized in certain states.
As an attorney that understands LGBT issues on both a personal and professional level, I can help LGBT couples sort through differing states laws regarding prenuptial agreements and other family law related issues. I encourage you to contact me today so that I can assist you in the legal matters surrounding LGBT prenuptials agreement and leave you with more time to focus on the fun things—planning the ceremony and honeymoon!
This post was written by Aubrey J. Parker: Family Law Associate