Same Sex surviving spouses, a recent Florida law change

Florida same-sex surviving spouses may be added on a death certificate without a court order

In 2015, the United States Supreme Court issued its pioneering decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding state laws prohibiting or refusing to recognize same-sex marriages unconstitutional.  After Obergefell, Florida started recognizing same-sex marriages and began to list a same-sex surviving spouse on the deceased spouse’s death certificate, where the marriage was lawfully entered into in another jurisdiction.  However, the surviving spouse was out of luck if the marriage was entered into before Obergefell, unless the surviving spouse obtained an individual court order approving the correction.

This obtrusive situation has changed for now.  In a recent order from March 23, 2017, a federal judge granted a summary judgment to a certified class, ordering that Florida must amend any death certificate without a court order when the decedent was lawfully married to a person of the same-sex at the time of the death.  The same judge issued an order striking down Florida’s marriage ban in August 2014.  The plaintiffs in this case were two gay surviving spouses, married before Obergefell, who filed the case not only on their behalf, but on behalf of other similarly situated persons as well.  The plaintiffs sought to have their spouses’ death certificates show they had been married, but the state argued that Florida law prohibited amending the death certificates without a court order.

According to the court’s ruling: “Not so.”  The court sided with the plaintiffs and held that a same-sex surviving spouse does not need a court order to amend the deceased spouse’s death certificate.  In its analysis, the court cited Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993) which held that “[w]hen this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.”  Applied to the case at hand, the State of Florida cannot differentiate between same-sex marriages entered into before and after Obergefell.  The court pointed out that if the law were otherwise, the schools might still be segregated.

The implications of listing a surviving spouse on a death certificate can be far-reaching such as qualification for social security survivor benefits.  Do not hesitate to contact the attorneys of Chepenik Trushin LLP, who are ready, willing, and able to assist with your estate planning and probate litigation needs.