Monday, June 29, 2015

In Wake of Marriage Ruling, Virginia Code Needs an Overhaul

While the Supreme Court has struck down all state marriage bans and found a constitutional right to same sex marriage, here in Virginia, the Code of Virginia still requires a major overhaul in order to bring it in alignment with the high Court's ruling.  Many provisions as worded still make references to "husband and wife" and will continue to impair the rights of same sex couples.  For example, question about how married same sex couples can hold title as "tenants by the entirety with right of survivorship."  While most of the statutory provisions refer to "spouses,"  One section does not: 

§ 55-20.2. Tenants by the entireties in real and personal property; certain trusts.
A. Any husband and wife may own real or personal property as tenants by the entireties. Personal property may be owned as tenants by the entireties whether or not the personal property represents the proceeds of the sale of real property. An intent that the part of the one dying should belong to the other shall be manifest from a designation of a husband and wife as "tenants by the entireties" or "tenants by the entirety."

B. Any property of a husband and wife that is held by them as tenants by the entireties and conveyed to their joint revocable or irrevocable trusts, or to their separate revocable or irrevocable trusts, shall have the same immunity from the claims of their separate creditors as it would if it had remained a tenancy by the entirety, so long as (i) they remain husband and wife, (ii) it continues to be held in the trust or trusts, and (iii) it continues to be their property

This provision is important because it protects jointly owned property from creditors of only one of the spouses.  A piece in the Richmond Times Dispatch looks at the need for significant changes to the Code of Virginia.  Here are highlights:

[N]ow, following the final resolution of one of the nation’s most divisive social issues, work already has begun in the state legislature and in the regulatory and administrative agencies to update hundreds of sections and regulations in the Code of Virginia to reflect the inclusion of legally recognized marriages between same-sex couples.

Possibly the biggest challenge — the issuing of marriage licenses to include same-sex marriages — already was implemented nine months ago, when gay marriage became legal in the commonwealth. On Oct. 6, the Supreme Court left standing a decision from lower federal courts that invalidated the 2006 amendment to the state Constitution defining marriage as between a man and a woman.

[L]awmakers and attorneys for the state also must address areas such as tax, inheritance and property laws; medical care; end-of-life decisions; adoption; child custody; and many others.
“It certainly will be a massive undertaking in terms of the number of areas of the law that might be affected,” said A.E. Dick Howard, a professor of constitutional law at the University of Virginia and the author of the modern Virginia Constitution.

[D]uring this year’s General Assembly session, Del. Marcus B. Simon, D-Fairfax, sponsored legislation that would have revised references to certain gender-specific terms in the code, replacing “husband and wife” with the gender-neutral “spouse.”

“The bill would have simply said that any reference to husband and wife could be read as spouse and references to mother and father could be read as parent, to reflect the new reality that same-sex marriage is permitted and is the law of the land, even in Virginia,” Simon said in an email Sunday.
But Republican state legislators remained leery of adopting regulatory changes ahead of a final Supreme Court ruling on gay marriage, blocking attempts by Democrats to update the code.
That changed Friday in light of the Supreme Court ruling, when House of Delegates Speaker William J. Howell, R-Stafford, announced that Republican leadership would no longer stand in the way of updating state laws to reflect legalization of same-sex marriage.
However, in addition to updating existing code sections, gay-rights advocates are asking for new legislation aimed at protecting same-sex couples from discrimination.
“We still are a state where openly gay or transgender people can be fired at work, denied housing and denied services and businesses in restaurants. There are people in the state who will not be putting their wedding photos on their desk because of that,” Parrish said.
The question that remains is what is going to happen with Marshall’s marriage amendment, backed by 57 percent of Virginia voters in 2006, after the highest court in the land has deemed it unconstitutional.
To remove it would require a new amendment, which the state legislature would have to pass twice, with one House of Delegates election in between, before it would be put before voters on a ballot.

Time will tell if the Virginia GOP lives up to its promise to update the Code.

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