Marriage and Moola

By Advocate.com Editors

Originally published on Advocate.com July 29 2008 11:00 PM ET

At a recent
financial planning presentation we gave in Washington, D.C.,
a man announced that he and his partner were flying to
California to get married, joining the thousands
who’ve done the same since June 17. The couple
already had a civil union in Vermont, a registered domestic
partnership in the District of Columbia, and a Canadian
marriage license. Why had they collected so many
certificates? Symbolism, he said.

While it may be
important to these fellows and many other same-sex
couples to memorialize their relationship in myriad ways,
the resulting financial implications can be
complicated. And with marriage in California open to
gay couples nationwide, state and federal laws
concerning same-sex relationships are being tested like
never before.

If you’re
thinking of tying the knot, here are some things you should
consider:

For starters,
it’s important to remember that the Defense of
Marriage Act prevents same-sex couples from receiving
the federal benefits currently available to
heterosexual married couples. So you can forget about
getting any federal breaks come tax time next year. And you
shouldn’t expect access to your
partner’s Social Security benefits should he or she
die, although the Social Security Administration did advise
its employees in a June 6 memo that instructions were
being prepared concerning the impact of California
marriage equality on agency guidelines. It’s unclear
what those instructions will be, but the memo indicates the
feds are taking notice of the situation.

Another issue: If
you “gift” your spouse more than $12,000 a
year -- or leave an estate to him or her that’s
worth more than $2 million -- hefty federal tax
penalties (upward of 45%) will be imposed.

DOMA also means
that states are not required to recognize marriage (or
marriage-like partnerships) from other states. What’s
more, according to Lambda Legal, some states actually
prohibit their residents from entering into any
marriage that would be illegal at home. If you get hitched
in California and return to Wisconsin, for example,
you could be fined $10,000 or imprisoned for nine
months (or both). Though such laws aren’t
typically enforced, Lambda Legal’s senior counsel
David S. Buckel says a rogue prosecutor with an agenda
could dust one of them off and make trouble for you.

On the flip side,
if you live in California (or in a state that
recognizes same-sex marriages performed in California, such
as New York) and are receiving nonfederal public
assistance, marrying may jeopardize your benefits,
since your new spouse’s income and assets can be
factored into your eligibility.

And then
there’s the whole issue of divorce—a costly
endeavor, emotionally and financially. Attorney fees
are one thing, but in a community-property state like
California, assets acquired during a marriage are
split evenly between spouses unless they have a prenuptial
agreement stating otherwise. So, for example, if you are the
wealthier spouse and you buy both your main home and
your vacation home, your husband or wife can walk away
from the marriage with one of them without having
contributed anything to the purchase of the property. The
only consolation is that such a split would trigger
federal gift taxes for the spouse on the receiving
end, thanks to DOMA.

Finally,
California requires a certain length of residency before you
can file for divorce: One half of a divorcing couple
must live in the state for six months prior to filing
as well as reside in the county where the filing takes
place for three months beforehand. So if you wake up the
morning after the big day with regrets, be prepared to live
with the consequences before you can be freed. And if
you’re an out-of-state couple married in
California, one of you will have to move to the Golden
State if you want to get divorced.

So before you say
“I do,” consider the consequences to your
finances. As historic and enticing as marriage is, the
cost may be too high.