Developments in Gay Divorce in Minnesota

Posted by & filed under Same Sex Divorce.

The latest development in gay divorce in Minnesota happened in probate court.  On August 1, a Hennepin County District Court judge upheld a probate court referee’s ruling that a surviving partner of a same-sex marriage was entitled to inherit the decedent partner’s assets.  The couple was married legally in California in 2008, moved to Minnesota in 2010, and the decedent passed away in 2011.

The court ruling depended on the Minnesota Uniform Probate Code, which does not prohibit inheritance by a same-sex partner, and the Minnesota Defense of Marriage Act, which recognizes same-sex marriages performed in other states.  The ruling also depended upon the disclaimer by the decedent’s parents of the decedent’s assets.  That is to say, had the decedent’s parents not disclaimed the assets, the assets would have gone to them because the decedent had no written will.

The Minnesota Defense of Marriage Act renders void in Minnesota any same-sex marriage solemnized in another state.  However, the court ruled that the legislative intent was to limit contractual rights, but not statutory rights.  The ruling lends support to the prospect that Minnesota courts can dissolve same-sex marriages, to the extent that doing so does not involve contractual rights.  Child custody, child support, spousal maintenance, marital property and non-marital property are statutory rights, not contractual rights.  So the probate court ruling suggests that these issues would be subject to the jurisdiction of the family court in a marriage dissolution.

Presumably, there will be cases in the near future that will continue to give shape to the developing landscape of gay marriage and divorce.


One Response to “Developments in Gay Divorce in Minnesota”

  1. Shirley Otto

    i am looking for legal advice. I was married in 2010 in Iowa in a same sex marriage. I am no longer with the person because she became abusive and I have an order for protection against her. I reside in Minnesota. I need a divorce for closure. I am wondering if you can help me.


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