The Validity of Same-Sex Marriage in Pennsylvania and Its Impact on Divorce Law

In 2014, a U.S. District Judge struck down parts of the Pennsylvania 1996 marriage law that made same-sex marriage illegal.   Specifically, denying couples the right to marry would be in violation of the due process clause of the U.S. Constitution which is applied to individual states through the 14th Amendment’s Equal Protection.  Equal protection means that states cannot infringe on people’s fundamental rights based on discriminatory distinctions (race, gender, etc.). In previous decisions regarding marital constitutional issues (i.e. interracial marriage), the federal court had found that marriage was fundamental to an individual’s well-being.  Marriage is a bond that has a substantial impact on a person’s livelihood; thus, a person’s right to choose who to marry should not be questioned. Even though the federal court had not legally recognized marriage as being a fundamental right, the court has interpreted that it is fundamental given its importance in society.  For same-sex marriage, the Court reasoned that a person’s sexual orientation warranted a “protected” status akin to race and gender. As a result, the Court held the Commonwealth of Pennsylvania could not deny a same sex couple their right to marry. Ultimately, in2015 the U.S. Supreme Court held that same-sex marriage should be legal in all 50 states.

After these landmark decisions, you may be wondering how it might affect divorce issues in divorce, such as alimony.  The court has not directly addressed how alimony might be affected given that some couples could not be legally married until 2014 but were acting as if they were a married couple (sharing mutual financial accounts, cohabitation).  Until 2005, Pennsylvania recognized common law. In 2017, there was a case (In re Estate of Carter) that involved a partner who was attempting to exercise his rights to his deceased partner’s executed will, which named him as an executor.  The court had recognized common law marriage as being just as legitimate as a traditional marriage. The court determined that the couple did in fact meet the burden of proof set for what constitutes common law marriage.  More importantly, the court also found that the fact they were a same-sex couple did not make their common law marriage invalid because the court now recognizes same-sex marriage; it would be discriminatory to deny the couple the rights and privileges entitled to a married couple.  Hypothetically, a divorcee could prove that there was a significant enough of a relationship that would rise to the standard of being recognized as “marriage” similar to how judges see retroactive common law marriages (this approach was actually used in a recent case in District of Columbia regarding alimony specifically; common law marriage is still recognized).

If you have any questions or need help resolving legal issues regarding LGBTQ rights in divorce, please contact the attorneys at The THOMAS SMITH Firm, P.C. at or 215-860-3747.



In re Estate of Carter, 159 A.3d 970, 2017 PA Super 104.

Gill v. Nostrand, 206 A.3d 869 (D.C. 2019).