Maryland Attorney General Issues Opinion on Same Sex Marriage

Author: Donna M. McMillan Date: 05/28/2010

Categories: Estate Planning and Administration, Partnership Planning

Earlier this year, the Maryland Attorney General (“AG”) issued a long awaited opinion regarding the treatment in Maryland of same sex marriages validly created in other jurisdictions. While the AG’s opinion did not constitute a change in the laws of Maryland relating to the rights of same sex couples in Maryland to marry in the state, the opinion created quite a furor among the opponents of same sex marriage.

The opinion does not have the force of a statute adopted by the legislature or an opinion issued by the state’s highest court. Rather, the opinion is intended to indicate how the courts of Maryland would rule when faced with the interpretation of Maryland laws as they relate to couples legally married in other states if those married couples happen to be gay or lesbian. Prior opinions of the AG had indicated that the courts would find same sex marriages a violation of the public policy of the State of Maryland and, for that reason, the courts would not require that they be treated with the deference traditionally given to the institutions of other states and countries. This opinion states that this is no longer the case.

Same sex couples cannot presently be legally married under the laws of Maryland. However, they can as of this writing be legally married in four (4) states: the District of Columbia and a number of foreign countries. Certain same sex marriages performed in California for a period of time have also been declared valid. Thus, it is conceivable, and even likely, that many same sex couples residing in Maryland and legally married in one of these other jurisdictions, will be recognized as being legally married in Maryland.

While marriage is not a preferred course of action for all couples, whether same sex or not, it is certainly a fact that many rights, benefits and obligations arising under Maryland laws and regulations are tied to the status of marriage. While by no means an exhaustive list, some examples include:

  1. The right to bring an action for wrongful death on behalf of a spouse.
  2. The right to a spousal exemption from recordation and transfer taxes upon the transfer of an interest in all real property (not just the parties’ principal residence).
  3. Exemption from the payment of Maryland inheritance taxes on the transfer of property upon the death of a spouse.
  4. Certain rights to pension or health care benefits of a spouse.
  5. A built in right to inherit if a spouse dies without having executed a will or other estate planning documents.
  6. The right to make health care and end of life decisions for a spouse.
  7. The right to order an autopsy for a spouse.
  8. The protection of property owned by spouses from the creditors of just one spouse in certain circumstances.

If, as is sometimes the case, the statute or regulation ties the right, benefit or obligation to the status of marriage as it is defined by the federal government, the fact that a same sex couple is legally married under the laws of one of the states or a foreign country is of no consequence. That is, the right, benefit or obligation will not be extended or applied to the same sex spouse. This is due to the application of the federal Defense of Marriage Act. However, if the statute or regulation relates simply to the status of marriage, the outcome could be quite different.

A day after the AG’s opinion was issued, Maryland Governor O’Malley issued a press release that stated, “I am confident that the Attorney General and his office will provide all necessary advice to State agencies on how to comply with the law, and I expect all State agencies to work with the Attorney General’s office to ensure compliance with the law.”While this is certainly not definitive as to how state and local agencies will respond in light of the opinion, it seems to indicate that they are expected to do so.

In the meantime, the possibility that Maryland agencies will afford same sex couples certain additional rights and impose certain obligations must be considered in any evaluation by gay and lesbian couples on whether or not to marry, particularly now that it is possible to do so in the District of Columbia.

All couples must be mindful that the Maryland legislature has the power to prohibit the recognition of foreign marriages by same sex couples should enough of its members agree. It can do so by defining same sex marriage as against the public policy of the state or it can simply prohibit the recognition of same sex marriages performed in any jurisdiction. As the AG’s opinion indicates, certain legislators have tried in the recent past to propose this type of legislation but have been unsuccessful in finding the necessary support. However, until the legislature affirmatively adopts a statute approving the recognition of such marriages, the issue is not finally resolved. Still, for many same sex couples, the opinion represents a step in the right direction.