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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