Gay Marriage- A Legal Perspective by Patrick Edaburn

With the Supreme Court rulings striking down Proposition 8 and the Defense of Marriage Act it is only natural for the LGBT community to celebrate over a major victory. Certainly there are many reasons to be glad for these rulings but it is important to remember that not everything has changed. 

To briefly explain what has happened; the Court struck down a provision of the Defense of Marriage Act (also called DOMA) that said the Federal Government will not recognize a same sex marriage. On the positive side this means that many federal benefits will now be available to same sex couples.

The most obvious of these benefits relates to income taxes, same-sex couples will now be able to file joint income tax returns assuming of course that doing so is in their best interest (consult your tax advisor to determine if that is the case).

It is also possible however that couples who have been married since 2008 would be able to file some amended tax returns. The IRS has not formally issued a ruling on this matter but again it is definitely something to investigate with your tax planner.

Immigration is another major benefit now available to same-sex couples. Previously if your spouse was from another country it would not be possible for you to get them a spousal waiver and thus it would be difficult for them to remain in this country permanently. It is now possible for you to request the spousal waiver for your spouse and avoid tons of red tape.

Social Security survivors benefits should now be available to your spouse although the details of exactly how much of a payment would be available are still pending. Unfortunately the government does not exactly move with great efficiency and so it will take some time for all of these things to be finalized.

There are of course many federal benefits which will be available to same-sex couples and it will take some time to determine how everything applies. I will probably be writing an update sometime in the future to expand on that.

However as wonderful as these new benefits are there are still limitations. Another provision of DOMA provides that no state has to recognize a same-sex union from another state. This provision remains in place, although I am hopeful future challenges will eliminate that. But for the time being it is important to remember that when you cross a state border your status very well may change.

For this reason it is important that everyone (this actually applies to any couple or any individual) should have a good estate plan in place. This plan should include powers of attorney for both medical and financial purposes so that if something happens when you’re out of state you will be able to make decisions for your spouse.

If you do not have such a document and you’re in a state that does not recognize same-sex unions it is likely the hospital will refuse to accept your decisions and instead will contact your spouse’s family to make them. Depending on your relationship with that family this could obviously be a difficult situation.

For the same reasons it is also important to have a will or trust in place to ensure that your assets go to your spouse if that is what you want. Again while California law is likely to protect you this may not be the case in other states. While an estate plan is actually important for anybody, regardless of marital status or sexual preference it is particularly important for same-sex couples

As you might imagine this is only the tip of the iceberg both in terms of the impact of the Supreme Court decisions and the issues facing same-sex couples. I hope to provide periodic updates via this newsletter to keep you informed of important issues and of course you’re always free to contact me for more specific advice. 


Patrick Edaburn is an attorney based out of Lodi/Stockton who volunteers his service at the San Joaquin Pride Center. He can be contacted via email here.     

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commented 2013-12-22 11:50:13 -0800 · Flag
Thank you