DOMA Overturned. Should You Get Married Now?

The big news of last week was the Supreme Court’s decision in United States v. Windsor which essentially overturned DOMA (the Defense of Marriage Act).  Same sex couples throughout the nation have been celebrating the news.  But what does it really mean? Should you get married now?  Even if that means going to another state to do so?DOMA

What the Decision Does and Does Not Do

The Windsor decision is a big step towards legalizing same sex marriage.  But, it does NOT actually give any marital rights to gay couples.  It merely states that the federal government cannot refuse to recognize a same sex marriage which has been legally entered into under a given state’s laws.  Currently, only 13 states (including California which was just reinstated as a result of another Supreme Court decision last week) and the District of Columbia allow same sex couples to get married.  The ruling really only applies to any rights or responsibilities offered by federal law.  If you live in a state that does not recognize same sex marriage, you still cannot get married in that state.   The ruling does not strike down any states laws which currently exist that might discriminate against gays.  The ramifications of the decision are complex and evolving on a daily basis.  One of the best resources for getting the facts is the Human Rights Campaign Fact Sheets which can be accessed here.

For a full overview of what the decision does and does not do, go here.

So We are Legally Married–Do We Get All Federal Benefits Now?

Unfortunately the answer to this question is not a definate Yes or No.  It really depends on the circumstances of your marriage and the federal benefits involved.  This video gives a good overview of the issues that need to be addressed.   Some federal benefits, for example the right to file joint tax returns, depend on whether or not you are living in a state that recognizes gay marriage.  So, if you got married in Washington, but live in Idaho, you may still not be able to file a joint federal tax return.  However, the IRS might change this position–which is why this is a constantly evolving process.  For more information, read this fact sheet.

What About Civil Unions or Registered Domestic Partnerships?

Depending on the federal benefit involved, the Windsor decision may give you the right to certain federal benefits if you live in a state in which you entered into a same sex Civil Union or Registered Domestic Partnership.  For example, social security benefits are linked to inheritance laws, which are determined by state law.  But a number of states that allow Civil Unions or Registered Domestic Partnerships grant the same inheritance rights  to same sex couples under the Civil Union or RDP status as married couples have.  Based on that, there is a good argument that such couples would qualify as married couples for social security.  See this fact sheet.

Should We Get Married Now?

This primarily depends on whether or not you live in a state that recognizes same sex marriage and/or only are concerned about certain federal benefits that you might get anyway if you live in a state that has Civil Unions or Registered Domestic Partnerships.  Marriage is a big step, both emotionally and financially.  Before you rush off to another state to get legal recognition you need to look at what your options are and what you want to accomplish.  It might be prudent to wait until more guidance is given by various federal agencies about what they will require to recognize same sex couples.  Once you are married, you then have to consider that you will have to use the legal system if you later decide to separate from your partner, which can be an expensive and complex process, particularly if you marriage occurred in a different state than where you live.



Posted in Divorce & Child Custody, Estate Planning, In the News, Inheritance, LGBT Legal Rights, Probate, Same Sex Relationships, Uncategorized Tagged with: , , , , , , ,

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