By Robert Stanley
Originally published on Advocate.com September 25 2013 3:00 AM ET
The U.S. Supreme Court ruling in United States v. Windsor invalidating section 3 of the Defense of Marriage Act brings to light many questions for couples contemplating marriage. The law used to restrict the federal interpretation of "marriage" and "spouse" to heterosexual unions, but the definition is now open to everyone — sort of. If you are in a same-sex relationship, there are some important questions you will want to ask yourself before you walk down the aisle.
Just how married will we be?
State and federal laws were in conflict before the Windsor decision, and they still are now — just in a different way. Previously, although several states allowed same-sex couples to be legally married and several others offered alternative legal statuses like domestic partnerships or civil unions, the federal government gave no recognition at all to these alternative relationships. Under DOMA, same-sex couples of any legal status, including those who were legally married by a state, were not entitled to any of the advantages associated with marriage at the federal level. Now, in light of the Windsor decision, the tables have turned. Federal law now embraces state laws that make same-sex marriage legal. So, if you live in one of the 13 “free states” (and the District of Columbia) where same-sex marriage is legal, you now have access to the more than 1,100 rights and responsibilities of marriage under federal law.
Unfortunately, in the other 37 “nonfree” states, same-sex couples are still second-class citizens. Most of these states offer no formal legal status at all for same-sex couples, while some offer something more than being legal strangers but much less than a full-fledged marriage. One lingering uncertainty after Windsor is whether same-sex couples who live in these nonfree states are entitled to any of the rights of federal marriage if they travel to a “free state” to get hitched. Depending on which nonfree state you live in, and which federal government agency you are dealing with, taking a vacation to get married in a free state may do the trick.
However, it could also land you in jail! In many of the nonfree states, it is a crime to marry under the laws of another jurisdiction if the marriage would be illegal at home. Lawmakers and courts have much work to do before this minefield is cleared up. If you are thinking of getting married, make sure you talk to a qualified local family lawyer who regularly handles same-sex family law matters, so that you know what you are really dealing with in your state.
What taxes will we owe?
Although the Windsor case struck down a significant portion of DOMA, the agencies that manage federal programs must still issue rules and regulations implementing the changes. Different federal agencies have taken different approaches to the issue. In some cases, they have taken a narrow state-by-state approach. For example, the Social Security Administration has indicated that same-sex couples who are legally married and live in free states will be able to obtain spousal Social Security benefits. However, many same-sex married couples who do not live in a free state, even if they validly married in another state, may not be able to get those benefits. In other cases, more broadly equitable procedures are being instituted. For example, the Department of Defense has indicated that it will honor all legal marriages of same-sex service members, regardless of where the service member resides. In fact, for those living in nonfree states who wish to marry, the military is providing an extra 10-day leave for the service member to travel to a free state to be married, and then providing all marital rights that opposite-sex military couples enjoy, including married housing options. (However, even in this area, the waters are murky. Several southern states are refusing to honor these federal guidelines for their state National Guard members.)
The federal agency whose guidelines will probably have the most immediate and significant impact on most same-sex couples is the Internal Revenue Service. The service recently issued its much-anticipated regulations in light of the Windsor case. The IRS takes the position that for federal purposes, same-sex couples who were married in free states will be able to (and required, in fact) to file married federal tax returns, regardless of where they live. (Same-sex married couples will, just like opposite-sex married couples, have the option to file “married joint” returns or “married separate” returns.) Also, a validly married same-sex couple will be able to file amended tax returns for up to three years from the date the returns were originally filed. For same-sex couples who have been married longer than three tax years, there is an open question as to whether a court might allow an amendment beyond the usual three-year statute of limitations. (Thousands of same-sex marriages took place in California in 2008 before Proposition 8 was passed, and same-sex nuptials occurred well before that in Massachusetts.)
The more important question for many couples contemplating marriage will be what filing a joint tax return will mean for their pocketbooks. For many gay couples, where both are high earners, the result of being treated as married by the feds will mean handing over much more money to Uncle Sam. On the other hand, those same-sex couples who have children with one spouse who stays home or earns far less than the other will likely see significant savings at tax time. In other words, for federal purposes, same-sex married couples will have income tax equality with their married opposite-sex couple neighbors, both the good and the bad.
There is one more headache created for same-sex couples by the differences in state tax laws and the new federal laws. If you live in a nonfree state, you will still have to file single state tax returns even though you are married and filing joint federal returns. In addition to the extra accounting expense, this will lead to inconsistencies across the state and federal returns that could trigger an audit. Couples living in nonfree states will want to seek out highly qualified local tax preparers who regularly work with same-sex couples.
What will happen when we travel?
The extent to which any state or foreign jurisdiction may respect your marital relationship is highly variable. Married gay couples should not assume that their legal relationship honored at home will mean they will be given basic legal standing when traveling. Depending on the destination, a married person could well find himself denied the most basic of rights like making health care decisions for his spouse or even visiting him in the hospital. Gay married couples should research the legal status afforded to same-sex couples in the places where they plan to travel and take appropriate precautions. Consider not traveling to Russia or certain Middle Eastern and African countries, where same-sex couples may find themselves imprisoned for the most innocent of affectionate behavior, which can be deemed “homosexual propaganda” under local law. Even if you are married, consider having additional protections through living wills and durable powers of attorney for health care, and taking photocopies of these and other important documents like your marriage license when you travel.
What happens if we break up?
This may be the toughest question of all. Once again, the free-state couples have the most clarity. If you were married in a free state, and you are splitting up in one, you should be able to get a divorce just like the straight couple down the street. For those living in a non-free state, the answer is much less clear. Litigation is pending that could bring divorce or other dissolution options to couples married in free states but living in nonfree states. As of now, these couples may find themselves having to move to a free state and establish residency (which can typically take six months) just to be allowed to legally split up. Even for couples living in free states, because their journey to marriage was often preceded by other statuses, e.g., domestic partnership or long-term cohabitation, divorces may also be combined with companion dissolutions and civil palimony type claims. Some couples who married in free states but live in nonfree states may find themselves unable to obtain any rights or remedies in the wake of a breakup due to the hostility of the local courts.
Although it is not very romantic, and happy couples never like to think about breaking up, one way for same-sex couples to protect themselves from problems is to enter into a detailed prenuptial agreement before they take the plunge, laying out exactly how they want their relationship to legally and financially operate both during a happy relationship and in the event of an unfortunate split. The prenup should be prepared by a highly qualified family law specialist familiar with the status of the laws surrounding same-sex relationships in the couple’s home state. Among other things, the agreement should acknowledge that this area of the law is evolving and subject to change, and that the couple wish for their intentions and agreements as spelled out in their prenup to be honored as a contract between them no matter what their legal status and rights may happen to be, and no matter what their home state may happen to be, at the time of their split.
What happens if one of us dies?
Here too, couples in the free states are at an advantage, because the laws generally appear to protect them just like their same-sex neighbors at both the state and federal level. Edie Windsor won the right to be free of significant estate taxes she was required to pay on her wife’s death under DOMA. Here too, however, there are complications even for those living in free states, and many more for those who do not. Once again, planning for all possibilities is the key to protecting one another, no matter where you live. Same-sex couples will be best protected by preparing wills and trusts and otherwise devising an estate plan that contemplates that their marriages may or may not be honored by the state or federal government at the time and place where one dies. Again, seek out a highly qualified local estate planning attorney familiar with the ins and outs of the law surrounding same-sex relationships.
ROBERT STANLEY is a family law attorney at Jaffe and Clemens LLP in Beverly Hills.