Marriage Equality Rhode Island

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Legal Aspects of Marriage

Rhode Island law protects and secures married couples and families in hundreds of ways. Here, we outline just a few of the rights and responsibilities currently denied to same-sex couples in Rhode Island.

The information on this page has been generously provided by GLAD.

Family & Medical Leave

The law understands that families need to be there for each other in difficult times. One key example of this is that employees may take time off from work to care for a spouse, parent or child under Rhode Island’s version of the federal Family and Medical Leave Act.¹ 

Same-sex couples have no right to take time off to care for a partner or the partner’s child or parent, forcing some to choose between caring for a partner and keeping a job.

Economic Support & Transfer of Property

The law regards married couples as an economic unit. For example, Rhode Island law requires spouses to support one another and to cover each other’s necessary expenses for food, shelter, and medical care.²  It allows only married couples to file joint tax returns and pool any deductions they may have.³  It allows only married couples to transfer property between each other during the marriage (and at divorce) without paying a transfer tax.

Money issues are almost always more complicated for same- sex couples because they are not treated as an economic unit. One simple example: working families file four tax returns (2 individual state and 2 individual federal) in April, not two (joint state and joint federal). Even when couples try to protect each other, for example, by putting the other’s name on a deed to the family home, they must pay a transfer tax.

Spousal Privacy

The law presumes spouses are each other’s closest confidants and protects them from disclosure of their confidences. Rhode Island law provides that neither spouse may share with others any private marital communication, including in lawsuits, or be compelled to give any testimony that would incriminate the other.⁴ Because of this presumed confidence, the law also requires spouses to disclose their relationships and attempts to prevent conflicts of interests in public positions.

In any litigation on any matter, a hostile party can make a same-sex partner testify about private conversations including the subject of the lawsuit.

Wrongful Death Actions

The law acknowledges that bad things happen that can devastate the family emotionally and financially. Wrongful death actions may be filed by either the decedent’s estate or by the surviving spouse, and the amount recovered is for the benefit of a surviving spouse (and children).⁵  Only a spouse can file legal actions for loss of consortium.⁶  For work-related deaths, only spouses can receive worker’s compensation death benefits or file an action against a negligent employer.⁷

Same-sex couples are denied all of these protections, even if they have been together for decades or the survivor was financially dependent on the deceased spouse. A surviving partner who is caring for the couples’ children, for example, would have no right to wage replacement or other financial safety nets normally available for families.

Inheritance

The law provides an enormous safety net to a surviving spouse upon death of his or her spouse. For example, if there is no will, a spouse still automatically inherits a significant portion of the estate.⁸  If there is a will, the surviving spouse may choose instead to take an interest in the decedent’s real estate regardless of the terms of the will.⁹  A surviving spouse is entitled to receive support while the estate is still being settled,¹⁰ a tax credit as a surviving spouse,¹¹ and a deduction of $175,000 in estate taxes.¹²

Surviving same-sex partners do not have the right to inherit without a will or to receive any of the other financial protections available to a surviving spouse.

Under federal law, there are enormously advantageous tax rules for spouses who benefit from their deceased spouse’s pension or retirement accounts. As to social security, when a worker covered by social security retires, becomes disabled or dies, only a spouse can claim benefits based on the worker’s work credits. Only a spouse of a disabled worker is eligible for additional benefits when he or she is 62 or over or when they have a child under age 16 in the home. Only a spouse can collect social security benefits at the higher rate payable to a deceased spouse, thereby providing a safety net for when a higher earning spouse those who spent less time in the workforce.

Consideration as Next-of-Kin

The law recognizes that a surviving spouse is the person who should make decisions about what happens after her spouse dies, as the person most likely to know what the deceased would have wanted, granting a surviving spouse first priority in a list of persons who can decide to make an anatomical gift¹³ or to determine how to care for the remains of the deceased spouse.¹⁴

Surviving same-sex partners have no automatic consideration in times of tragedy, and are treated as legal strangers.

Access to Divorce

When a relationship has failed, the law provides a mechanism for ending it and equitably dividing property, and in some cases, providing for ongoing support of a former spouse.¹⁵

Same-sex couples do not have access to the rules of the divorce system for fairly sorting out how to share property acquired during the relationship. The uses of equity and partnership theories in court are unpredictable, fail to provide the same protections, and are more expensive to litigate as well.

Parental Rights

When a married couple has a child, the child is presumed to be the child of the married pair.¹⁶ If the married couple separates while the child is a minor, the law provides an ordered and reliable system for allocating parental rights and responsibilities and child support.¹⁷

Although same-sex couples often plan together to have children and jointly raise them, the law does not reflect this reality. Same-sex couples do not have access to this system of rules, and must instead rely on the equity jurisdiction of the courts to prove the bona fides of their relationship and their parenting before a court will consider allocating parental rights and responsibilities to a non-birth or non-adoptive parent.

Private Entities

Married couples are often given better rates on insurances, and are allowed to join gyms, golf clubs, shopping clubs and the like as a married couple, usually at less cost than for two individual memberships.

There are numerous examples of how private entities piggy-back on the law’s use of marriage as a basis for determining who is a family.

• ¹    R.I.G.L. § 28-48-2. (back)
• ²    Landmark Med. Ctr. v. Gauthier, 635 A.2d 1145, 1152 (1994) (recognizing mutual obligation of support between spouses). (back)
• ³    R.I.G.L. § 44-30-11; R.I.G.L. § 44-30-51. (back)
• ⁴    R.I.G.L. § 9-17-13. (back)
• ⁵    R.I.G.L. §§ 10-7-2, -2. (back)
• ⁶    R.I.G.L. § 9-1-41(a) (spousal consortium claim in case of injury); R.I.G.L. § 10-7-1.2(a) (spousal consortium claim in case of death). (back)
• ⁷    R.I.G.L. § 28-33-12 (death benefits payable to dependents); R.I.G.L. § 28-33-13 (spouses presumed to be dependents); R.I.G.L. § 28-33-23 (benefits payable to dependents upon death of injured employee); R.I.G.L. § 28-35-12 (surviving spouse may petition worker’s compensation court). (back)
• ⁸    R.I.G.L. § 33-1-10; 33-25-2 (life estate in any real estate owned by decedent). (back)
• ⁹    R.I.G.L. § 33-25-4. (back)
• ¹⁰   R.I.G.L. § 33-10-3. (back)
• ¹¹   R.I.G.L. § 44-30-6. (back)
• ¹²   R.I.G.L. § 44-22-1. (back)
• ¹³   R.I.G.L. § 23-18.6-3(a)(1). (back)
• ¹⁴   R.I.G.L. § 5-33.2-24(2)(ii). (back)
• ¹⁵   R.I.G.L. § 15-5-1 et seq.; R.I.G.L. § 15-5-16.1 (equitable property division), R.I.G.L. § 15-5-16(a)-(c) (alimony). (back)
• ¹⁶   R.I.G.L. § 15-8-3. (back)
• ¹⁷   R.I.G.L. § 15-5-16(d)-(g) (child custody); R.I.G.L. § 15-5-16.2 (child support). (back)