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California Throws a Curveball at Gay Marriage

People show their support for Proposition 8 in Los Angeles    Last week’s elections show that same-sex marriage will be a sticky mess both politically and legally.

The California electorate approved a referendum banning same-sex marriage.  See Time magazine story.  Also, Arizona and Florida approved a ban.

California’s Supreme Court had ruled that same-sex marriages were legal.  Couples flocked to California for their weddings.  As a result of last week’s referendum the legality of California weddings may be in doubt.  Same-sex couples married in California should check with a California attorney.

As we indicated in an earlier post, gay marriage presents many legal minefields.  See Gay Marriage–Unanswered Legal Questions.  We foresee litigation in both the personal injury field as well as the estates and family law fields.

For example, assume that a same-sex couple are together in a car.  They were married in California.  Harry owns the car and is operating it, and Herbert is the passenger.  Harry goes through a stop sign, and there is a collision.  Herbert is injured seriously.  Can Herbert, the passenger, sue Harry, the driver? 

The answer is yes and no.  First, there is no legal impediment in New York preventing one spouse from suing another for either negligence or intentional wrongs.  However, there may be no insurance for such a suit, and there may be no recovery from an insurance company.

New York had an Insurance Law provision which did not permit coverage for an inter-spousal lawsuit.  In other words, there is no coverage for one spouse suing the other.  However, New York changed the law to the extent that the auto owner could buy an option which would provide coverage.

Therefore, let us assume that Harry did not buy the option.  Therefore, his insurance company did not provide coverage for inter-spousal suits.  It is very possible that the insurance company would not cover Herbert’s suit against Harr on the ground that they were married.  It is also possible that the couple would argue that their California marriage was never legal and was a nullity, therefore, Herbert’s suit against Harry should be covered.  

At this time New York does not recognize same-sex marriages performed inside New York, however, it recognizes such marriages which were performed in a state where it is legal.  As we recommended previously, New Yorkers should consider the legalities of a same sex marriage if they seek one in either California, Massachusetts, or Connecticut.  There may be ramifications down the road especially in inhieritance and family law matters.

If you have a question please feel free to contact me at 800-581-1434 or

Mark E. Seitelman, 11/11/08,


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