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Florida did not recognize same-sex marriages until recently. Section 741.212, Fla. Stat. provides that the term “marriage” means only a legal union between one man and one woman. Marriages between persons of the same sex, entered into in any jurisdiction whether within or outside of Florida or any foreign jurisdiction, were not recognized for any purpose in this state. The statute is in the process of being repealed by the Florida Legislature as a result of the cases described below.
In Obergefell v. Hodges, 576 U.S. 644 (2015) the Supreme Court addressed cases that came from Michigan, Kentucky, Ohio, and Tennessee which like Florida defined marriage as a union between one man and one woman. The issues before the Court were (1) whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex, and (2) whether the Fourteenth Amendment requires a state to recognize a same-sex marriage licensed and performed in a state that does grant that right.
The Court held that “The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.” Therefore the state laws that invalidate same-sex marriages are invalid. It follows, the Court further held, that there is no lawful basis for a state to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character.
Based on the Obergefell decision, the court in Brenner v. Scott, 2015 WL 44260 (N.D. Fla. 2015) and 2016 WL 3561754 (N.D. Fla. 2016) declared §741.212, Fla. Stat. unconstitutional. Since then, Florida has recognized the legality of same-sex marriages. In fact, in a wrongful death situation, the court may even recognize Obergefell retroactively. In Ripple v. CBS Corporation, 385 So.3d 1021 (Fla. 2024) the court held that a person who married the decedent after the injury can recover damages as a surviving spouse under §768.21(2), Fla. Stat. In Rintoul v. Philip Morris USA, Inc., 2024 WL 3735894 (Fla. August 9, 2024) the court recognized that a surviving spouse in a same-sex marriage may bring a loss of consortium claim even if the spouses were not married at the time of the injury due to the now-unconstitutional prohibition of same sex marriage.
This is undoubtedly a new and evolving area of the law. Please consult your tax and estate planning attorney to discuss your rights and questions as a spouse in a same sex marriage. These questions may include the ability to inherit from your spouse, the ability to make medical and healthcare decisions if your spouse becomes incapacitated, the ability to take advantage of certain tax provisions for married couples, and other questions.