Legal Woes for Same-Sex Couples

In September of 1996, Bill Clinton signed the Defence of Marriage Act (DOMA) into federal law. Under DOMA, no U.S. state or political subdivision is required to recognize a same-sex marriage treated as a marriage in another state. Section 3 of DOMA codifies the non-recognition of same-sex marriage for all federal purposes, including insurance benefits for government employees, Social Security survivors’ benefits, and the filing of joint tax returns.

This creates some issues that same-sex couples must be aware of. Many of these issues, with a little forsight and legal planning, can be avoided.

GAY DIVORCE

In a divorce case, often the court will order some type of alimony or spousal support. Under federal law, a spouse paying that support is entitled to deduct those payments from his or her federal taxes. However, if you are not a federally recognized spouse, the tax deduction for that support is not available.

Additionally, with divorce, we often see the court order a division of retirement or 401k accounts. This is done through a qualified domestic relations order (QDRO). Retirement investments are governed by federal law, so again, without the recognition, or some other solution, dividing these assets is made exceedingly difficult.

(One way to work around some of this is to use pre or post nuptual agreements, even if there is no same-sex recognized marriage in the state you could turn to contract law, as outlined here by our very own Kareema Mitchell.)

ESTATE PLANNING

For married heterosexual couples, even if they do nothing, their spouse will have some form of protection under the laws of intestacy. However, intestacy laws in Utah do not recognize same-sex partners, and therfore without a will or trust, or some other form of estate planning (holding property in joint tenancy, use of payment on death options, etc), same-sex partners would be legally entitled to nothing.

Visiting with an estate attorney can help ensure your significant other is able to inherit from your estate. More importantly, doing so could give you the tools you need to ensure your medical directives and power of attorney are executed by the person you choose, be it a same-sex partner or otherwise.

Temma Ehrenfeld points out in her article:

“Gays without income and savings of their own are especially vulnerable when a partner dies. They are ineligible for the Social Security “widow benefit,” which lets surviving spouses take the deceased’s full Social Security payment. And while state laws typically protect spouses from being cut out of a will, many of Jacobs’ gay clients live in houses they won’t inherit, he said. In one case, a client was kicked out of the house two weeks after her partner died – by the partner’s family. A Maryland probate judge ruled that she had no claim.

Wills and trusts can help clarify and ease these situations, but gay couples get busy with life and procrastinate just like their heterosexual neighbors.”

DOMA has seen multiple days in court and last month, an Appeals Court ruled DOMA unfairly denied federal benefits to same-sex couples married under state law. While the decision was stayed pending the resolve of the appeal to the highest court, its decision was clearly against DOMA. However, regardless of how the appeals process on DOMA pans out, same-sex couples need to be aware of these legal issues and begin crafting ways to address their legal needs.