Same Sex Marriage Prenups

Love is love. Marriage is marriage. And sadly, divorce is divorce. Same sex marriage has been legal in New York since 2011 and in the United States since 2015. Census data from the 2019 census showed that there were 568,000 same-sex married couples in the United States.

Although new to the legal marriage scene, gay couples have the same issues as straight couples when it comes to protecting their assets. These concerns can be alleviated with a well-crafted prenuptial agreement.

A New York prenuptial agreement is a signed contract between future spouses before the marriage. Each of you sets out in detail everything you have that is worth something financially. 

With the help of attorneys, you decide how the property and finances will be distributed during the marriage and how they will be divided up in the case of divorce or if one or both of you passes away. 

In a prenup, property is designated as separate property or marital property.

Anything of value that you bring into the marriage is separate property. If you want to keep it separate, meaning in your name only, the prenuptial agreement should specifically say what property is for each of you. If you don’t keep the property separate it might be considered marital property down the road in case of divorce. 

Let’s say you bought a house before you got married, and the two of you live in the house during the marriage. A prenup will ensure that the house stays as your sole property if you should divorce. 

Just as prenuptial agreements are a smart idea for straight couples in New York, they might make even more sense for gay New Yorkers contemplating marriage. 

Gay Couples Get Married Older

Gay couples tend to get married at an older age than opposite sex couples. This gives them more time to accrue assets that they may want to protect before they settle down. 

The mean age at first marriage for women in same-sex couples was 33 as opposed 29 for women in straight couples. The mean age for men marrying for the first time in same-sex couples was 38 as opposed to 30 for different-sex couples.

Also notworthy is the mean age differences between same-sex couples. A recent study showed the age difference in same sex couples is 6.3 years, as opposed to 3.9 years for straight couples. As mentioned, the older spouse may have more assets than the younger spouse. A prenup can help them protect them if the marriage doesn’t work out.

Gay Couples Have More Education, More Income

Another recent study showed that men in same-sex marriages have higher levels of education and higher annual incomes than men married to women. Half of men in same-sex marriages have at least a bachelor’s degree, as opposed to 38% of men married to women. 

Forty-seven percent of women in same-sex marriages have a bachelor’s degree while 45% of women married to men have one. 

More education can correlate into a higher household income for gay couples. According to the 2019 census, gay couples are more likely to have a higher household income than a straight couple. 

Gay couples on the whole are less likely to have children than straight couples. This means lots of extra time to put into their careers and other business endeavors. It also allows for the ability to save money if you are so inclined. The reality is that you could end up with quite an impressive asset sheet by the time you are ready to contemplate marriage. 

What if You Have Children From a Previous Relationship?

Like straight couples, you or your partner could have a child from a previous relationship. If that’s the case and your future spouse doesn’t plan on adopting the child, a prenup might be a good idea. With a prenup you can be sure that your child will be provided for in case your marriage doesn’t work out. 

What if You Lived Together Before Marriage was Legal?

Gay marriage has only been legal in New York for eleven years. This means a lot of couples lived as if they were married and most likely owned many things jointly.

New York law defines marital property as assets acquired since you have been married. So there is not a lot of clarity on how to split property you shared before marriage if you divorce. A prenup would be a smart way to spell out that division in a way that is fair to both of the spouses. 

Talk Prenuptials with an Experienced New York Family Lawyer

Talking about these matters before marriage may not be romantic, but is a smart and practical thing to do.