The federal Defense of Marriage Act (DOMA) was signed into law by President Clinton on September 21, 1996.  DOMA defines "marriage" to consist exclusively as a heterosexual union of a man and a woman.  Further, DOMA directs federal agencies to recognize only opposite-sex marriages for the purposes of enacting any agency programs. 

 

Among other pertinent provisions, DOMA states: "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 wife." 

An increasingly large portion of the assets of married couples consist of rights to payments and stock from pension plans.  In many states such assets are subject to division during a divorce.  Divorce and division of property are generally controlled by state law, but pension plans are controlled by federal law in many respects.

 

Several states refer to children who are born or adopted after the execution of a parent’s will and omitted from the provisions of the testamentary instrument as "omitted" or "pretermitted" children. In the interest of fairness, states that recognize the inheritance rights of posthumously born or adopted children have traditionally allowed "omitted" children to inherit under intestate succession (i.e., taking a share equal in value to what the child would have received if the testator had died without a will).

 

However, the law on the inheritance rights of posthumously conceived children (children conceived after the death of a parent) is less developed. This lack of any firmly established legal precedent for determining the inheritance rights of posthumously conceived children may be attributed to significant and ongoing advances in reproductive technology, which have made it possible for children to be conceived subsequent to the death of a parent.

 

The number of couples living together without choosing to get married has more than tripled in the past two decades. Unless the cohabiting couple lives in a state which recognizes common law marriages, living together does not automatically provide them with the legal rights and protections of a traditional marriage. Accordingly, upon separation or death of one cohabiting partner, the law may treat the couple as complete strangers. To prevent such a result, unmarried couples can opt to legally define their relationship by entering into a cohabitation agreement, which will direct a court on how to divide property and assets among the couple.

A cohabitation agreement is a legal contract which defines the partnership of an unmarried couple. The agreement is often necessary to preserve some important legal rights, obligations and protections that an unmarried couple necessarily foregoes. In other words, the privileged legal status of married couples, which is provided automatically through custom, statute and agreement, must be affirmatively contracted into by cohabiting couples. Although cohabiting couples cannot achieve all of the legal benefits of married couples (such as tax benefits), a cohabitation agreement provides a good start in defining the rights and responsibilities of each party.