1. S h a c k i n g u p i s F u n t o D o :
Drafting Cohabitation and Partnership Agreements
Christopher W. Rumbold
Gladstone and Weissman, P.A.

2. The Status of Same-Sex Unions:
• International
• National
• Permissive States
• Recent Decisions
• Florida
• Constitutional, Statutory and Decisional Law
• Local Government
Drafting Cohabitation/Domestic Partnership Agreements:
• Practical Components
• Specialized Components and Considerations
• Taxation Issues
• Estate and Trust issues (and more)
• Pitfalls and Practice points
Unchartered Territory:
• Section 2 of DOMA
• Foreign Marriage
• Foreign Divorce
• Interstate inequality
• Expanding your practice
Course Outline

3. International Acceptance (or lack thereof) Continuum

4. Defense of Marriage Act

5. •Section 2. Powers reserved to the States: No State, territory, or possession of
the United States, or Indian tribe, shall be required to give effect to any
public act, record, or judicial proceeding of any other State, territory,
possession, or tribe respecting a relationship between persons of the same
sex that is treated as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such relationship.
 On June 26, 2013 house democrats introduced legislation to repeal this Section.
•Section 3. Definition of marriage: In determining the meaning of any Act of
Congress, or of any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, the word
'marriage' means only a legal union between one man and one woman as
husband and wife, and the word 'spouse' refers only to a person of the
opposite sex who is a husband or a wife.
 United States v. Windsor, 570 U.S. _____ (2013).
DOMA

6. States Which Recognized Same-Sex Marriage As of 2010
• Massachusetts. On November 18, 2003, in the matter of Goodridge v. Department of Public
Health, 440 Mass. 309, the court held that banning gay marriage arbitrarily infringed on the
personal freedoms of the individuals.
• Connecticut. On October 10, 2008, the Connecticut Supreme Court held that prohibiting gay
marriage violated the litigant’s equal protection rights.
• Iowa. On April 3, 2009, the Supreme Court of Iowa, in Varnum v. Brien, stated that there was no
compelling government interest in denying gays and lesbians the rights to marry.
• Vermont. On April 7, 2009, the Vermont legislature passed the, “Act to Protect Religious
Freedom and Recognize Equality in Civil Unions” wherein, the legislature legalized access to
marriage for gays and lesbians.
• Maine. On May 6, 2009, Governor John E. Baldacci signed into law LD 1020 entitled “An Act to
End Discrimination in Civil Marriage and Affirm Religious Freedom” which extended marriage
rights to homosexual couples.
• New Hampshire. On June 3, 2009, New Hampshire’s Governor John Lynch executed HB 0436
which permitted equal access to marriage for same sex couples.

7. States Which Recognize Same-Sex Marriage (2013)
• Massachusetts Goodridge v. Department of Public Health
• Connecticut Kerrigan v. Commissioner of Public Health, Connecticut Substitute Senate Bill 899 §2
• Iowa Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). TITLE XV. Judicial Branch and judicial procedures - SUBTITLE 1. Domestic relations
• Vermont Title 15. Domestic Relations - Chapter 1. Marriage
• New Hampshire 457:1-a
• Washington, DC Religious Freedom And Civil Marriage Equality Amendment Act 2009
• New York Marriage Equality Act
• Maryland An. Code 1957, art. 62, § 1; 1984, ch. 296, § 2
• Maine Sec. 2. 19-A MRSA §650-A
• Washington Washington Revised Code - Title 26. Domestic relations - Chapter 04. Marriage
• Delaware Delaware Statutes title 13, section 101 (a) & (d)
• California Hollingsworth v. Perry
• Rhode Island H 5015B
• Minnesota HF 1054
• Hawaii (CU) Civil Union Act 2011 No 1.
• Illinois (CU) Religious Freedom Protection and Civil Union Bill
• New Jersey (CU) Civil Union Act
• Colorado
• Nevada
• Oregon
• Wisconsin
Civil Unions & Domestic Partnerships Recognized

8. United States v. Windsor, 570 U.S. _____(2013)
• The Plaintiffs in this case were legally married in Ontario, Canada and the State of New York
recognized their marriage as legal. When Spyer, Windsor’s spouse died, Windsor was levied a
$363K estate tax as she was not considered a “surviving spouse” given DOMA’s definition of
marriage as between one man and one woman. Windsor contended that DOMA (Section 3)
violated the guarantee of equal protection under the laws as applied to the Federal
Government through the Fifth Amendment. Justice Kennedy, in writing for the five member
majority noted, in striking down Section 3 of DOMA under rational basis review, that, “What the
State of New York treats alike the federal law deems unlike by a law designed to injure the same
class that the State seeks to protect.” Succinctly stated, “DOMA writes inequality into the entire
United States Code” and “is unconstitutional as a deprivation of the liberty of the person
protected by the Fifth Amendment of the Constitution.”
• In application, the Court’s holding is specifically limited to those states that recognize same-sex
marriage, it does not apply to the rest of the union as entitlement to Federal benefits based
upon marriage is generally determined by the state of residence as opposed to the state in
which the marriage ceremony occurred.

9. Hollingsworth v. Perry, 570 U.S. ____ (2012)
• In 2008 the California Supreme Court held that defining marriage only as
between one man and one woman violated the equal protection clause
of the State Constitution.
• In reaction, and later that same year, California citizens voted to amend
the Constitution making the only recognized marriages in the state being
those between one man and one woman.
• The California Supreme Court held that the Proposition was properly
enacted and passed State Constitutional muster (all constitutional marital
rights were afforded but the term “marriage” remained applicable only to
opposite-sex spouses).
• Respondents challenged the law in Federal Court under the Due Process
and Equal Protection Clauses of the United States Constitution and
prevailed. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (ND Cal.
2010).
• Chief Justice John Roberts delivered the majority opinion and determined
that Plaintiff’s (private citizens that California deemed to have standing
under California Law and that the Ninth Circuit Court of Appeals deemed
to have standing) did not have Article III standing to challenge the District
Court’s decision.

10. • 1993 Baehr v. Lewin: Hawaii’s high court issues first-of-a-kind ruling that a barrier to
marriage is discrimination, launching the freedom to marry movement.
• 1996 Baehr v. Miike: Trial court conducts a full trial, complete with expert witnesses
testifying on the state’s reasons for denying marriage, and finds that those reasons lack
merit, meaning that the same-sex couples are entitled to marriage licenses.
• 1998 Hawaii amends its constitution with regard to marriage by exempting same-sex
couples from protection of equality guarantee, giving legislature the power to define
marriage as limited to a man and a woman. Section 23. The legislature shall have the
power to reserve marriage to opposite-sex couples. [Add HB 117 (1997) and election
Nov 3, 1998]
• 1999 Baehr v.Miike: Hawaii’s high court rules that Hawaii’s constitution no longer
protects lesbian and gay individuals with regard to their freedom to marry.
Hawaii

11. Florida Constitution, Article 1, Section 27
Marriage defined. Inasmuch as marriage is the legal union
of only one man and one woman as husband and wife, no
other legal union that is treated as marriage or the
substantial equivalent thereof shall be valid or recognized.
History.—Proposed by Initiative Petition filed with the
Secretary of State February 9, 2005; adopted 2008.

12. Fla. Stat. §741.212 (2012)
Marriages between persons of the same sex.
(1) Marriages between persons of the same sex entered into in any jurisdiction,
whether within or outside the State of Florida, the United States, or any other
jurisdiction, either domestic or foreign, or any other place or location, or relationships
between persons of the same sex which are treated as marriages in any jurisdiction,
whether within or outside the State of Florida, the United States, or any other
jurisdiction, either domestic or foreign, or any other place or location, are not
recognized for any purpose in this state.
(2) The state, its agencies, and its political subdivisions may not give effect to any
public act, record, or judicial proceeding of any state, territory, possession, or tribe of
the United States or of any other jurisdiction, either domestic or foreign, or any other
place or location respecting either a marriage or relationship not recognized under
subsection (1) or a claim arising from such a marriage or relationship.
(3) For purposes of interpreting any state statute or rule, the term “marriage” means
only a legal union between one man and one woman as husband and wife, and the
term “spouse” applies only to a member of such a union.
• History.—s. 1, ch. 97-268.

13. U.S. Counties That Recognize Domestic Partnerships
U.S. counties that offer domestic partner benefits either county-wide or in particular cities (colored
green) or statewide partner benefits (colored yellow), as of February 1, 2012.

14. Lowe v. Broward County, 766 So.2d 1199(Fla. 4th DCA 2000)
This case concerned the constitutionality of the Broward County
Domestic Partnership Act under Article VIII, Section 1(g) of the
Florida Constitution. Except for one section of the Act which was
severable from the Act, the court held that the ordinance was
constitutional.

15. Florida Senate 2013:
Senate Bill 196 (Domestic Partners)
• The Bill as initially sponsored by Senator Sobel:
• Section 741.507 provided for the rights and responsibilities of Domestic Partners. First, any
privilege or right of married spouses was granted to domestic partners on equivalent terms.
Second, any responsibility imposed by statute/court rule on a married person was imposed on
equivalent terms. Third, any privilege, right or responsibility imposed on a spouse with respect to
a child of the spouses was imposed on equivalent terms to domestic partners. Fourth, any
privilege, right or immunity afforded a surviving spouse with respect to a child was imposed on
equivalent terms to domestic partners. Fifth, state tax laws as to married spouses and their
children applied on equivalent terms to domestic partners.
• The Bill by the Committee on Children, Families and Elder Affairs:
• Section 741.506 provided for the rights and responsibilities for Domestic Partners. First and
Second, health care facilities and correctional institutions were required to provide domestic
partners equivalent visitation. Third, public and private entities that provide spouses emergency
notice were required to provide same to domestic partners. Fourth, domestic partners were
treated as equivalent to married spouses when joint tenants in property. Fifth and Sixth,
domestic partners could act as health care surrogates by proxy and patient’s representatives of
a deceased domestic partner.
• The Bill as revised died in the Judiciary.

16. Population/Demographic
2010 United States
• The estimated population of homosexuals and lesbians in the United States is 5.2 million – 5.3 million.
• The estimated number of same-sex couples in the United States was 131,729 same-sex married
couple households and 514,735 same-sex unmarried partner households.
2011 Florida
• The estimated population of homosexuals and lesbians in Florida is 650,000 – 700,000.
• Between 2007-2011 Florida’s population was comprised of 19.2% foreign born individuals, while the
population of the United States was comprised of 12.8% of foreign born individuals.
• The estimated number of people that move to the State of Florida and become residents is 300,000
– 400,000 annually.

17. Posik v. Layton, 695 So.2d 759 (Fla. 5th DCA 1997)
Certainly, even though the agreement was couched in terms of a personal services
contract, it was intended to be much more. It was a nuptial agreement entered into
by two parties that the state prohibits from marrying. But even though the state has
prohibited same-sex marriages and same-sex adoptions, it has not prohibited this type
of agreement. By prohibiting same-sex marriages, the state has merely denied
homosexuals the rights granted to married partners that flow naturally from the marital
relationship. In short, "the law of Florida creates no legal rights or duties between live-
ins." Lowry v. Lowry, 512 So. 2d 1142 (Fla. 5th DCA 1987). (Sharp, J., concurring
specially). This lack of recognition of the rights which flow naturally from the break-up
of a marital relationship applies to unmarried heterosexuals as well as homosexuals.
But the State has not denied these individuals their right to either will their property as
they see fit nor to privately commit by contract to spend their money as they choose.
The State is not thusly condoning the lifestyles of homosexuals or unmarried live-ins; it is
merely recognizing their constitutional private property and contract rights. Even
though no legal rights or obligations flow as a matter of law from a non-marital
relationship, we see no impediment to the parties to such a relationship agreeing
between themselves to provide certain rights and obligations. Other states have
approved such individual agreements.

18. Dietrich v. Winters, 798 So.2d 864 (Fla. 4th DCA 2001)
Appellee is not without a remedy, however. Agreements between unmarried parties
may be enforced provided there is valid and lawful consideration apart from any
express or implied agreement regarding sexual relations. See Stevens v. Muse, 562 So.
2d 852, 853 (Fla. 4th DCA 1990). In Stevens, this court granted a petition for certiorari
and quashed the circuit court's opinion affirming the trial court's decision that an
agreement between a cohabiting unmarried couple was unenforceable. See also
Poe v. Levy's Estate, 411 So. 2d 253, 256 (Fla. 4th DCA 1982) ("a cause of action based
on an express contract or for construction of a trust is enforceable regardless of the
fact that the parties may be cohabiting illicitly as long as it is clear that there was
valid, lawful consideration"). An oral agreement between cohabiting parties, if
proved, is enforceable. Crossen v. Feldman, 673 So. 2d 903 (Fla. 2d DCA 1996).

19. Forrest v. Ron, 821 So.2d 1163 (Fla. 3d DCA 2002)
It is well settled that "[a] cause of action based on an express contract . . . is
enforceable regardless of the fact that the parties may be cohabiting illicitly as long
as it is clear there was valid, lawful consideration separate and apart from any
express or implied agreement, regarding sexual relations." Poe v. Estate of Levy, 411
So. 2d 253, 256 (Fla. 4th DCA 1982); Dietrich v. Winters, 798 So. 2d 864 (Fla. 4th DCA
2001); Posik v. Layton, 695 So. 2d 759 (Fla. 5th DCA 1997); Crossen v. Feldman, 673 So.
2d 903 (Fla. 2d DCA 1996); Stevens v. Muse, 562 So. 2d 852 (Fla. 4th DCA 1990); Evans
v. Wall, 542 So. 2d 1055 (Fla. 3d DCA 1989)(court awarded funds to co-habitant on
constructive trust theory).

20. Practice Point: General Drafting
When drafting a Domestic Partnership Agreement:
Treat the document as if you were preparing a pre-nuptial
agreement in that all of the client’s rights with respect to assets,
expenses, income, support, distributions, attorneys fees and
estate provisions should be addressed.
As Chapters 61 and 732 do not apply to unmarried individuals
there are no “defaults” to your agreement - if you fail to include a
provision (right, benefit or obligation) your client loses it.
(No pressure.)

21. Domestic Partnership/Cohabitation Agreement DNA
• Recitals
• Reflection Independent/Decision Making
• Consideration
• Effective Date
• Financial Disclosures
• Common Law Marriage Exclusion
• Property Separate
• Property Acquisition – Separate/Joint
• Property Disposition – Joint
• Income/Expense Payments – Intact
• Support Payments – Post-Relationship
• Equitable Relief
• Death Provisions
• Waiver of Contractual Rights
• Attorney’s Fees
• Default/Breach
• Termination
• Dispute Resolution
• Incorporation into Judgment
• Venue, Forum, Acknowledgments
• Boiler Plate Provision

22. Drafting: Consideration
Marriage:
•Ashby v. Ashby, 651 So.2d 246 (Fla. 4th DCA 1995)(Holding that a contracting party’s
agreement to do that which is not required or forego that which is entitled is sufficient
consideration for contract.
• Diaz v. Rood, 851 So.2d 843 (Fla. 2d DCA 2003)(Holding that a court’s inquiry as to
consideration is whether valid consideration existed not the sufficiency of the
consideration.)
Partnership:
• Stevens v. Muse, 562 So.2d 852 (Fla. 4th DCA 1990)(Holding that agreements between
unmarried persons will be enforced if there is lawful consideration (as traditionally
defined)).

23. Drafting: Assets
Marriage:
• Fla. Stat. §§61.075, 61.076, 61.077
Partnership:
• Define jointly-titled and acquired property.
• Define the payment of expenses or liabilities associated with jointly-titled and acquired
property.
• Define the valuation and disposition of jointly titled and acquired property in the event
of a termination event.
• Define the right to, or waiver of, appreciation in separate property.

24. Drafting: Support
Marriage:
• Fla. Stat. §61.071, 61.08, 61.09, 61.10 and 61.14
• Belcher v. Belcher, 271 So.2d 7 (Fla. 1972)(Holding that waivers of temporary financial
relief during intact marriage are contrary to public policy and, as such, said provisions
will not be enforced. )
Partnership:
• No legally based duty to support.
• No legally based entitlement for support.
• No legally based entitlement to share in the income of the other.
• Include provisions for support during relationship/ post-relationship.
• Include methodology for computation of support amount if not fixed rate.
• (Consider impact on Payor’s Lifetime Gift Exclusion.)

25. Drafting: Attorneys Fees
Marriage:
• Fla. Stat. §61.16, 61.071
• Khan v. Khan, 79 So.3d 99 (Fla. 4th DCA 2012)(affirming Belcher, supra, and
holding that waiver of temporary attorney’s fees remains contrary to Florida’s
public policy which requires spouses to support each other.)
Partnership:
• No legally based duty to pay attorney’s fees.
• No legally based entitlement to attorney’s fees.
• Include provisions for payment of default/modification attorneys fees.

26. Drafting: Termination
Marriage:
• Fla. Stat. §§61.011, 61.021, 61.031, 61.043, 61.052
Partnership:
• Define the manner in which the partnership is terminated – notification, delivery,
interim terms, etc.
• Define whether disputes under the contract are to be submitted to mediation or
arbitration in advance of filing for enforcement. Define rights, entitlements and
obligations during pendency of enforcement action.

27. Post DOMA – Individual Income Tax Issues
• Filing status: Married Filing Separately or Married Filing Jointly.
• Liability is joint and several / Innocent spouse protection.
• Surviving spouse – For two years following the death of your spouse, a surviving
spouse can file MFJ.
• Adjusted gross income – Floors, Ceilings and Thresholds – fluctuate based on filing
status.
• Education Benefits.
• Practice Point: When drafting a Domestic Partnership Agreement, consider the tax
ramifications if the state of residence were to recognize the legality of same-sex
unions. It may benefit your client to anticipatorily contract for MFJ or MFS returns,
allocation of applicable tax benefits or credits, and respective liability in the event
of a deficiency or audit.

28. Tax Illustrations
SCENARIO A: SAME-SEX COUPLE- ONE SPOUSE EARNS $100,000 / YR. AND THE OTHER EARNS $80,000 /
YR. / THEY HAVE ITEMIZED DEDUCTIONS TOTALLING $27,500 AS FOLLOWS: $20,000 MORTGAGE
INTEREST, $5,000 REAL ESTATE TAXES, $2,500 CHARITABLE CONTRIBUTIONS
MFJ MFS SINGLE
INCOME TAX
TAXPAYER $ 28,351 $ 13,211 $ 13,211
SPOUSE N/A $ 15,233 $ 13,599
TOTAL TAX $ 28,351 $ 28,444 $ 26,810
SCENARIO B: SAME-AS “SCENARIO A” EXCEPT THAT THE ONLY SPOUSE WORKING IS THE ONE EARNING
$100,000/ YR.
MFJ MFS SINGLE
INCOME TAX
TAXPAYER $ 8,869 $ 13,211 $ 13,211
SPOUSE N/A $ - $ -
TOTAL TAX $ 8,869 $ 13,211 $ 13,211
SCENARIO C: SAME-AS “SCENARIO B” EXCEPT THAT THE WORKING SPOUSE EARNS $300,000/ YR.
MFJ MFS SINGLE
INCOME TAX
TAXPAYER $ 64,324 $ 79,100 $ 73,199
SPOUSE N/A $ - $ -
TOTAL TAX $ 64,324 $ 79,100 $ 73,199

29. Practice Point: Protective Income Tax Refund Claim
There is a three year statute of limitations for filing amended Federal
Income Tax Returns. Same-sex couples residing in states that do not
presently recognize same sex unions, should be advised to consult with
an accountant if, and when, their state approves or acknowledges
same-sex unions to inquire about filing amended returns – married filing
jointly - to capitalize on that advantageous filing status. The IRS is
honoring amended returns post-DOMA, for those legally married but
unable to claim the desired status because of DOMA (Section 3).

30. Post DOMA – Estate Tax Benefits
• Marital deduction – Unlimited transfer of property to spouse. If intestate tax is generated, it is
paid by surviving spouse’s estate.
• Gift tax – Lifetime gifting of up to $5,250,000 (gifts + estate) above which 40% tax is applied for
property that passes by intestacy. Consider - Credit Shelter Bypass Trust.
• Portability of Estate Tax – Unused share of exemption is available to surviving spouse. This
election is made by the executor of the estate on the estate tax return.
• Gift Splitting – Single - $14,000.00 / Married - $28,000.00 (not applied against lifetime exemption)–
Utilize part of your spouses’ lifetime gift exemption.

31. Intestate Succession (Fla. Stat. §§732.101 – 732.111)
• Any portion of a decedent’s estate that is not disposed of by Will passes to the decedent’s heirs as follows:
• A surviving spouse of the decedent receives the entire estate if the decedent has no surviving lineal
descendants.
• A surviving spouse of the decedent receives the entire estate if the decedent had descendants that are
also descendants of the surviving spouse and neither the decedent nor the surviving spouse had any other
children.
• If the decedent is survived by a spouse and lineal descendant(s) and any of the lineal descendants is not
also a descendant of the spouse, then the spouse receives one half (1/2) of the estate, and the
descendants share the balance, per stirpes.
• If there are lineal descendents but no surviving spouse, then the estate is shared by the lineal descendants.
• If there is no surviving spouse and no lineal descendents, then the estate passes to lineal ascendants and
collateral relatives.
• If none of the above heirs survive, then the estate passes to the heirs of the decedent’s grandparents, per
stirpes, with one half of the estate going to the decedent’s maternal relatives and one half going to the
decedent’s paternal relatives. If there are no relatives on one side, then the entire estate passes to the
other side.

32. • Durable Power of Attorney (Part II of Chapter 709).
• Wills and Revocable Trusts – Disposition of assets as intestacy statutes omit same sex-
partners. (Name your partner as your fiduciary (only way to ensure executor/personal
representative & successor trustee)).
• Designation of Health Care Surrogate (Part II of Chapter 765) (Governs all health care
decisions except termination of life-prolonging procedures).
• Living Will (Part III of Chapter 765) (Governs procedures for terminating life-prolonging
procedures).
• Burial Cremation Affidavit (See Fla. Stat. § 732.804).
• Hospital Visitation Authorizations (See Langbehn v. Public Health Trust of Miami-Dade
County, 661 F. Supp. 1326 (S.D. Fla. 2009)
Ancillary Documents For Unmarried Partners

33. • Fla. Stat. § 63.042(1) provides that any person, a minor or an adult, may be
adopted.
• Florida sanctions the adoption of an adult even if the impetus behind the
adoption is a benefit that the adopted adult would not have otherwise received.
See In re Adoption of Holland, 965 So.2d 1213 (Fla. 5th DCA 2007).
• Note: A decree of adoption may be overturned based upon fraud in the
proceedings and fraud on the court.
• Fla. Stat. §63.042(3) Florida Department of Children and Families v. In re Matter of
Adoption of XXG and NRG, 45 So.3d 79 (Fla. 3d DCA 2010).
*** Fla. Stat. §732.108 (2012): For the purpose of intestate succession by or from an adopted person,
the adopted person is a descendant of the adopting parent and is one of the natural kindred of all
members of the adopting parent’s family, and is not a descendant of his or her natural parents, nor
is he or she one of the kindred of any member of the natural parent’s family or any prior adoptive
parent’s family…
Adult Adoption as an Estate Planning Tool

34. Practice Point: Testamentary Provisions
When drafting a Domestic Partnership Agreement consider the following:
• Requiring the drafting and execution of supplemental testamentary documents.
• Creating a cause of action against the estate of the partner in the event that testamentary documents do not
conform.
• Designating the partner as the executor of the estate.
• The parties specifically agree to retain an estates and trusts attorney within thirty (30) days of the date
of execution of this Agreement to draft or revise the parties’ respective Last Will and Testament, any
Codicil thereto or Trust Agreement or any other testamentary substitute in conformity herewith. The
parties shall provide said attorney a copy of this executed document and any attachments hereto.
The parties’ Last Will and Testament, any Codicil thereto or Trust Agreement or any other testamentary
substitute in conformity with this Agreement shall be completed within ninety (90) days of the date of
execution of this Agreement. Prior to and following the execution of their respective Last Will and
Testament, any Codicil thereto or Trust Agreement or any other testamentary substitute, each party
shall each have the right to inspect and review the other’s Last Will and Testament, any Codicil thereto
or Trust Agreement or any other testamentary substitute in order to ensure compliance herewith. In the
event that PARTNER X does not conform his testamentary documents to the provisions of this
Agreement within the time set forth above and prior to his death, PARTNER Y shall have a cause of
action against PARTNER X for specific performance or other contract enforcement remedy as
provided by law. Further, in the event that PARTNER X does not conform his testamentary documents
with the provisions of this Agreement prior to his death, PARTNER Y shall have a cause of action against
PARTNER X’S estate for a sum equal to that which she would have received had his Last Will and
Testament, any Codicil thereto or Trust Agreement or any other testamentary substitute been drafted
in conformity with the terms of this Agreement.

35. Common-Law Marriage Recognition, Statutory and/or Decisional Law Authority
Alabama Waller v. Waller, 567 So.2d 869, 869 (Ala. Civ. App 1990)
Colorado People v. Lucero, 747 P.2d 660, 663 (Colo. 1987), 2) C.R.S.A. § 14-2-104(3)
District of Columbia Hoage v. Murch Bros. Const. Co., 50 F.2d 983, 985 (App.D.C. 1931)
Iowa In re Marriage of Martin, 681 N.W.2d 612, 617 (Iowa 2004)
Kansas K.S.A. 23-2502
Montana Snetsinger v. Montana University System, 104 P.3d 445, 451 (Mont. 2004)
New Hampshire N.H. Rev. Stat. § 457:39 (Limited to probate proceedings)
Rhode Island DeMelo v. Zompa, 844 A.2d 174, 177 (R.I. 2004)
South Carolina Tarnowski v. Lieberman, 560 S.E.2d 438, 440 (S.C.App. 2002)
Texas V.T.C.A., Family Code § 2.401
Utah U.C.A. 1953 § 30-1-4.5 (Requires Court Sanction/Approval)
This list does not include states which permit for grandfathered in common law marriages.
741.211. Common-law marriages void
No common-law marriage entered into after January 1, 1968, shall be valid, except that nothing
contained in this section shall affect any marriage which, though otherwise defective, was entered
into by the party asserting such marriage in good faith and in substantial compliance with this
chapter.

36. Wakeman v. Dixon, 921 So.2d 669 (Fla. 1st DCA 2006)
Mary L. Wakeman appeals a final order dismissing with prejudice her amended
complaint seeking to enforce several agreements with Dene' B. Dixon, appellee, under
which appellant argued she was granted certain parental rights and responsibilities,
including visitation, with respect to two minor children born to Dixon. We agree with the
trial court that, under Florida law, absent evidence of detriment to the child, courts have
no authority to grant custody or to compel visitation by a person who is not a natural
parent and that agreements providing for visitation by a non-parent are unenforceable.
Accordingly, we affirm.

37. Jacoby v. Jacoby, 763 So.2d 410 (Fla. 2nd DCA 2000)
For a court to properly consider conduct such as Mrs. Jacoby's sexual orientation on
the issue of custody, the conduct must have a direct effect or impact upon the
children. See Maradie v. Maradie, 680 So. 2d 538 (Fla. 1st DCA 1996). "The mere
possibility of negative impact on the child is not enough." Id. at 543. The connection
between the conduct and the harm to the children must have an evidentiary basis; it
cannot be assumed. See id. We have reviewed the court's comments concerning the
negative impact of the mother's sexual orientation on the children, and have found
them to be conclusory or unsupported by the evidence.

38. Breach – Written/Oral
The elements of a breach of contract action are a valid contract, a material breach
and damages. See Miller v. Nifakos, 655 So.2d 192, 193 (Fla. 4th DCA 1995) (holding that
to establish a breach of contract, a party must show the existence of a contract, a
breach thereof, and damages.).
Fla. Stat. §95.11(2)(b)(five years for written contract).
To state a cause of action for breach of an oral contract, a plaintiff is required to allege
facts that, if taken as true, demonstrate that the parties mutually assented to “a certain
and definite proposition” and left no essential terms open. See Jacksonville Port
Authority v. W.R. Johnson Enterprises, Inc., 624 So.2d 313 (Fla. 1st DCA 1993), rev. denied,
634 So.2d 629 (Fla. 1994).
Fla. Stat. §95.11(3)(k)(four years for oral contract).

39. Defenses
• Abandonment: American Enviro-Port, Inc. v. Williams, 489 So.2d 839 (Fla. 1st DCA 1986).
• Act of God: Seaboard Air Line Ry. Co. v. Mullin, 70 So. 467, 469 (Fla. 1915).
• Breach by Third Party: Bryan and Sons Corp. v. Klefstad, 237 So.2d 236, 238 (Fla. 4th DCA
1970), appeal after remand, 265 So.2d 382 (Fla. 4th DCA 1972).
• Damages: Scott-Steven Development Corp. v. Gables by the Sea, Inc., 167 So.2d 763, 764
(Fla. 3d DCA 1964), cert. denied, 174 So.2d 32 (Fla. 1965).
• Discharge: Nacoochee Corp. v. Pickett, 948 So. 2d 26, 30 (Fla. 1st DCA 2006).
• Duress: Davis v. Hefty Press, Inc., 11 So.2d 884, 886 (Fla. 1943).
• Failure of Consideration: Maryland Casualty Company v. Krasnek, 174 So.2d 541, 543 (Fla.
1965).
• Fraud: Lance Holding Co. v. Ashe, 533 So.2d 929, 930 (Fla. 5th DCA 1988).

40. Defenses (con’t)
• Frustration: Home Design Center–Joint Venture v. County Appliances of Naples,
563 So.2d 767, 770 (Fla. 2d DCA 1990).
• Hindering the Performance of the Other: Hanover Realty Corp. v. Codomo, 95
So.2d 420, 423 (Fla. 1957).
• Illegality: McIntyre v. Norman, 429 So.2d 1296, 1297 (Fla. 3d DCA 1983), rev.
denied, 438 So.2d 833 (Fla. 1983).
• Impossibility: Walter T. Embry, Inc. v. LaSalle Nat. Bank, 792 So.2d 567, 570 (Fla. 4th
DCA 2001), subsequent appeal, 868 So.2d 661 (Fla. 4th DCA 2004).
• Mistake: Williams, Salomon, Kanner, Damian, Weissler & Brooks v. Harbour Club
Villas Condominium Association, Inc., 436 So.2d 233, 235 (Fla. 3d DCA 1983).
• Rescission: Florida Insurance Guaranty Assoc., Inc. v. Love, 732 So.2d 456, 457 (Fla.
2d DCA 1999).
• Unconscionability: Barakat v. Broward County Housing Authority, 771 So.2d 1193,
1194 (Fla. 4th DCA 2000).

41. Rescission
As set forth in Billian v. Mobile Corporation, 710 So.2d 984, 991 (Fla. 4th
DCA 1998), rev. denied, 725 So.2d 1109 (Fla. 1998) in order to set forth a
proper complaint to state a cause of action for rescission of a contract,
the Plaintiff must plead:
1. The character or relationship of the parties;
2. The making of the contract;
3. The existence of fraud, mutual mistake, false representations,
impossibility of performance, or other ground for rescission or
cancellation;
4. That the party seeking rescission has rescinded the contract and
notified the other party to the contract of such rescission;
5. If the moving party has received benefits from the contract, he
should further allege an offer to restore these benefits to the party
furnishing them, if restoration is possible; and
6. Lastly, that the moving party has no adequate remedy at law.

42. No Contract?
Know Remedies!
McLane v. Musick, 792 So.2d 702 (Fla. 5th DCA 2001)(holding that plaintiff was entitled
to an equitable lien against his deceased wife’s estate where the parties, though
unmarried, lived in a committed relationship and the plaintiff contributed substantial
sums of money to property titled solely in his wife’s name thereby warranting restitution
to prevent unjust enrichment.)
Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022 (Fla. 4th DCA 1996)(noting that a
constructive trust is remedial device which restores property to the rightful owner and
prevents unjust enrichment and holding that to establish and impose a constructive
trust there must be a promise (express or implied), transfer of property and reliance
thereon, a confidential relationship and unjust enrichment.)
Sorrells v. McNally, 89 Fla. 457 (1925)(noting that a resulting or involuntary trust is a
creature of equity that is independent of contract and arises by implication of law
based upon the facts and circumstances of the particularized event coupled with the
intent (express or implied) of non-titled contributor/investor.)

43. Defense Of Marriage Act:
An Update to Prior Report, General Accounting Office, 2004
There are 1,138 benefits, rights and protections provided on the basis of marital status in Federal law. Defense of Marriage Act: An Update to
Prior Report, General Accounting Office, 2004.
• Social Security – (Surviving Spouse Benefits / Additional benefits for child (cared for) of deceased spouse).
• Payroll Taxes – (Employer contributions for domestic partner health care benefits is included in employee income as taxable fringe
benefit / Employer’s payroll tax based on employees taxable income).
• Child Based Tax Incentives – (head of household exclusions / child tax credit).
• Tax Gains on Principal Residence ($250,000 vs $500,000 exclusion).
• Estate Tax (Surviving spouse exemption).
• Taxation on Retirement Savings (Deferred taxation and protection against forced withdrawal for spouses).
• Family and Medical Leave (applies only to spouses).
• Immigration Law (Prohibition against lesbian and gay citizens and permanent residents to petition for partners’ immigration).
• Federal Employee Benefits – (Excluded from FEHBP).
• COBRA – (Continuation coverage to qualified beneficiaries- spouse and dependent children).

44. Bassett et al. v. Governor Richard Snyder
Case No.: 12-10038 / The Honorable David M. Lawson / United States District Judge
Opinion and Order, dated June 28, 2013
• Plaintiffs’ alleged that Michigan Public Act 297, which, when implemented would discontinue
medical and other fringe benefits previously enjoyed by unmarried couples whose spouses were
publicly employed and in so doing violated their rights under the Equal Protection and Due Process
Clauses.
• Michigan’s Constitution was amended in 2004 to include Article I, Section 25 which defines marriage
as between a man and a woman.
• Plaintiff’s relationships fall with the intimate relationships protected by the Due Process Clause but the
Court determined the law did not impermissibly burden that fundamental right.
• Plaintiff’s sexual orientation does not warrant the application of intermediate scrutiny, but instead
rational basis review, and the Plaintiff’s have provided strong evidence that the discriminatory
classification serves no legitimate government interest.

45. Wilson v. Ake, 354 F.Supp.3d 1298 (M.D. Florida 2005).
A same-sex couple sought a declaration that their marriage was valid for federal
and Florida law purposes. To issue such a declaration, the court would have had
to invalidate both the federal DOMA and the Florida statutes defining marriage
the same way and expressly forbidding courts to recognize same-sex marriages
from other states. The court declined to invalidate any of the relevant statutes
finding that (1) DOMA did not violate the Full Faith and Credit Clause; (2) the right
to marry a person of the same sex was not a fundamental right guaranteed by
the Due Process Clause; (3) homosexuals were not a suspect class warranting strict
scrutiny of equal protection claim; (4) under a rational basis analysis, DOMA did
not violate equal protection or due process guarantees; and (5) the Florida
statute prohibiting same-sex marriage is constitutional.

46. July 22, 2013 (Ohio)
Injunction Entered Against Same-Sex Marriage Ban
On Monday, July 22, 2013 a Federal Judge granted a temporary
restraining order prohibiting the state of Ohio from applying its
constitutional ban against same-sex unions to a same-sex couple, one
partner of which is terminally ill. The Judge ordered that the Ohio
registrar may not accept any death certificate for Mr. Arthur that fails
to designate him as “married” or fails to designate his partner, Mr.
Obergefell, as his “surviving spouse.” In so ruling, the Court noted,
“This is not a complicated case. The issue is whether the State of Ohio
can discriminate against same sex marriages lawfully solemnized out
of state, when Ohio law has historically and unambiguously provided
that the validity of a marriage is determined by whether it complies
with the law of the jurisdiction where it was celebrated. Throughout
Ohio’s history, Ohio law has been clear: a marriage solemnized outside
of Ohio is valid in Ohio if it is valid where solemnized… How then can
Ohio, especially given the historical status of Ohio law, single out same
sex marriages as ones it will not recognize? The short answer is that
Ohio cannot.”

47. SPECIAL THANKS:
Acknowledgment and appreciation for assistance with the preparation of the
materials and presentation to:
• Danial B. Lawman
• Abraham Vais, Law Clerk, Gladstone & Weissman, P.A.
• Joseph Castro, CPA, CFF, Kaufman Rossin & Co., P.A.
• George D. Karibjanian, Esq., Proskauer Rose, LLP