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No more ‘councilmen?’ Council votes for gender-neutral titles  

No more ‘councilmen?’ Council votes for gender-neutral titles  

Josh Middleton    February 14, 2019

In a show of unanimous support, members of City Council passed legislation Thursday that would change language in the Philadelphia Home Rule Charter to be more gender neutral.   Voters will ultimately decide the issue as a ballot...

Mark My Words

Elections and whom to support

Mark Segal    February 14, 2019

Once upon a time, the LGBT community had no LGBT choices in politics, only LGBT-friendly candidates, who weren’t LGBT themselves, to endorse. And, once upon a time, there were no LGBT...

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West Philly’s Mariposa Food Co-op sets the table for inclusiveness

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West Philly’s Mariposa Food Co-op sets the table for inclusiveness

Suzannah Cavanaugh    February 14, 2019

 Founded on antidiscrimination ideals, cooperatives have a storied history as LGBTQ havens. “It’s pretty ingrained in the culture. [Co-ops] have been known as safe spaces for queer folks since probably the...

Second council ally not seeking reelection

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Second council ally not seeking reelection

Lenny Cohen    February 14, 2019

 Philadelphia Councilman-at-Large Bill Greenlee announced that he will not seek reelection, paving the way for another new City Council member. “After giving it much thought, I have decided this will be...

Are dating apps helpful or hurtful?

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Are dating apps helpful or hurtful?

Gary L. Day    February 14, 2019

 As social media has proliferated in recent years, more and more gay men are turning to dating apps like Grindr and Scruff for personal connections, be they casual sexual encounters...

Local LGBTQ health organizations get a financial boost

Local

Local LGBTQ health organizations get a financial boost

Lenny Cohen    February 14, 2019

CHECK, PLEASE!: LBGT-specific HIV agencies across the area were recently awarded thousands of dollars from two different contributors. Coca-Cola (left) presented Action Wellness PHL Executive Director Kevin Burns with a...

Bleak forecast for LGBTQ elder housing

Regional

Bleak forecast for LGBTQ elder housing

A.D. Amorosi    February 14, 2019

A portrait of the future for LGBTQ elder adults indicates that by 2030 there will be seven million LGBTQ senior citizens living in the United States, according to the results...

Future uncertain for city’s safe-injection site 

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Future uncertain for city’s safe-injection site 

Josh Middleton    February 12, 2019

Philadelphia was inching closer to becoming the first city in the United States to open a safe-injection site to address the city’s opioid crisis. But the project has hit a...

Media Trail

National

Media Trail

Larry Nichols    February 7, 2019

Trans teacher sues DC-area district, citing discrimination A transgender English teacher is suing a Maryland school district claiming that she was repeatedly harassed by students, parents and colleagues at three schools...

International News

International

International News

Larry Nichols    February 7, 2019

Hong Kong court denies male status to three transgender men Hong Kong’s High Court has refused to allow three transgender men to be recognized as males on their official identity cards...

Common-law marriage opens doors to legal rights for LGBT elders

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Marriage equality came to Pennsylvania in 2014 through the Whitewood v. Wolf case, and nationally in 2015 through the Obergefell v. Hodges case. But long before those cases, many LGBT couples made commitments and promises to each other to live their lives together as spouses — even without government recognition or a marriage license. Sometimes those commitments were formal through a commitment ceremony and sometimes they were private through an exchange of rings and promises.

Sadly, some LGBT people lost their loved ones before they could have a legal recognition of their relationships through marriages. Now there is a legal process to recover the rights and benefits of marriage retroactively by establishing a common-law marriage. Pennsylvania courts are granting retroactive recognition of those relationships in the form of common-law marriages, which has benefitted many LGBT elders. Probate courts have entered orders to recognize a marriage date as the date that the couple exchanged promises to live their lives as a married couple in a number of cases where a partner died before a marriage license could be issued.

Many people have misconceptions about common-law marriage and what it takes to establish one. Marriage in Pennsylvania is a civil contract. A common-law marriage is a marriage by express agreement of the parties by words uttered in the present tense for the purpose of establishing a marriage, even without any formal marriage license. LGBT couples and surviving spouses have proven common-law marriages by submitting evidence to the court such as affidavits confirming that rings were exchanged, copies of documents such as wills and powers of attorney, financial documents and beneficiary designations, among other ways.

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Common-law marriages are marriages. That means that they come with all of the same rights, benefits and responsibilities of legal marriage, including important rights in the event of the death of a spouse such as access to Social Security survivor benefits and access to pensions and other assets. It also means that a zero-percent tax rate on Pennsylvania inheritance tax would be assessed instead of the 15 percent for non-spouses. A refund would also go to the surviving spouse if the inheritance taxes were already paid.
Surviving partners have also been able to amend a death certificate of a deceased partner to include the marital status as “married” and adding the surviving spouse’s name and to inherit through intestate succession (inheritance without a will) from a deceased partner. A declaration of common-law marriage also allows spouses to take advantage of divorce laws, giving them access to alimony determinations and division of marital property through equitable distribution.

This recognition of common-law marriages is possible because a Pennsylvania Superior Court case in 2017 confirmed that same-sex couples have the same right to prove a common-law marriage as opposite-sex couples under the United States constitution, applying the Obergefell v. Hodges and Whitewood v. Wolf cases retroactively.
Recently, a Philadelphia court entered an order recognizing a common-law marriage for a same-sex couple who had been together since 1972. Since all common-law marriages were abolished in Pennsylvania in January 2005, a couple must have entered into the common-law marriage before that date.   

Outside of Pennsylvania, laws governing common-law marriages vary widely. The majority of states do not recognize common-law marriages. LGBT elders who have lost a loved one prior to marriage equality should consult with an experienced LGBT family law and estate attorney to determine if they qualify for rights and benefits through establishing a common-law marriage.

Tiffany Palmer is a partner at Jerner & Palmer, P.C. in Philadelphia and is the director of the Family Law Institute of the National LGBT Bar Association. She was awarded the Justice in Action Award by Mazzoni Center in 2018 for her advocacy for LGBT civil rights. Palmer is running for Judge of the Court of Common Pleas in a May 21 primary election.


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