Issues Affecting Same-Sex Couples FAQ

Does the federal government recognize same-sex marriage?

Yes. The federal government must now recognize valid same-sex marriages.

The U.S. Supreme Court's June 26, 2013 decision in U.S. v. Windsor cleared the way for same-sex married couples to receive federal benefits. In Windsor, the Supreme Court struck down the section of the federal Defense of Marriage Act (DOMA) that limited marriage to a union between a man and a woman. You can read more about that decision here.  

As a result, legally married same-sex couples will qualify (for the most part) for federal benefits - regardless of where they live. However, the rules for eligibility do vary among federal agencies.  

Married is Married - Even in Non-recognition States

Many federal agencies, such as the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Office of Personnel & Management, look to the place of celebration (where the marriage was performed) to determine whether same-sex married couples are eligible for benefits. If you're in a valid marriage, you will qualify for immigration status and federal employee benefits (if either of you works for the federal government), even if you live in a non-recognition state.  

It wasn't clear how the IRS would approach this issue until August 2013, when the U.S. Department of Treasury ruled that all same-sex couples that are legally married in any U.S. state, the District of Columbia, a U.S. territory or a foreign country will be recognized as married under all federal tax provisions where marriage is a factor.

The Treasury Department further clarified that federal recognition for tax purposes applies whether a same-sex married couple lives in a jurisdiction that recognizes same-sex marriage (such as California) or a non-recognition jurisdiction (such as Texas). But the decision does not apply to same-sex couples in domestic partnerships or civil unions.

Married - But Only if You Live in a Recognition State

Other federal agencies, including the Social Security Administration, only recognize marriages that are valid in the state of domicile (where the couple lives) for the purposes of granting federal benefits. This means if you're in a same-sex marriage but live in a non-recognition state, you aren't eligible for Social Security benefits on your spouse's work record. If you live in one of the 14 jurisdictions that recognize same-sex marriage, you will qualify for benefits. This rule also applies to Medicaid and Supplemental Security Income, Medicare, Bankruptcy filings, and benefits under the Family Medical Leave Act.

Lambda Legal is a great resource for getting the latest information on these tricky legal issues: http://www.lambdalegal.org/publications/after-doma

 

 

Should same-sex couples get married?

If you live in one of the states that recognizes same-sex marriage, whether you and your partner should take the plunge depends on many factors -- including whether you have (or plan to have) children, how you feel about joint ownership of property, whether you want to go through a formal court process (divorce) if you break up, how your state and federal tax liabilities will change once you're married, to name just a few. Keep in mind, now that the federal government recognizes same-sex marriages, you'll need to focus on both state and federal law. To learn more, see Nolo's articles Same-Sex Marriage Pros and Cons and Federal Marriage Benefits Available to Same-Sex Couples. See also Nolo's book Making it Legal: A Guide to Same-Sex Marriage, Domestic Partnerships, and Civil Unions, by Frederick Hertz with Emily Doskow.

Will the U.S. government or another state recognize my same-sex marriage?

Eligibility Rules for Federal Benefits Vary by Federal Agency

Many same-sex couples get married in a state that recognizes same-sex marriage. Previously, those marriages, although valid in a same-sex marriage equality state, were not recognized by the United States federal government because the federal Defense of Marriage Act (DOMA) specifically defined marriage as a union between a man and a woman.

Since the U.S. Supreme Court struck down DOMA's definition of marriage as unconstitutional, the federal government must now recognize valid same-sex marriages.

However, the eligibility rules for benefits do vary among federal agencies. Some agencies, such as the US Citizenship and Immigration Services, the IRS and the US Office of Personnel and Management, will recognize all valid same-sex marriages, regardless of where same-sex married couples reside. All legally married, same-sex couples will qualify for immigration status, federal tax benefits and federal employee benefits (if either spouse works for the federal government), even if they reside in states that don't recognize their same-sex marriage.  

But other agencies, such as the Social Security Administration, only recognize marriages that are valid in the state where the couple resides. So a same-sex married spouse living in a non-recognition state will not qualify for Social Security benefits under his or her spouse's work records.

State Recognition  

Will another state, such as Texas, recognize a valid same-sex marriage from New York? When it comes to state recognition, the law is ever-changing. A few states, California and Washington, explicitly recognize same-sex marriages performed in other states or countries. It's also probably safe to assume that any of the jurisdictions where same-sex marriage is legal will also recognize same-sex marriages from other states. As of September 2013, these include California, Connecticut, Delaware, D.C., Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington. Although Wyoming and New Mexico have not legalized same-sex marriage, courts in these states may recognize a same-sex marriage in order to grant a divorce.

Meanwhile, 36 states have constitutional amendments or state laws that restrict marriage to one man and one woman. None of these states are required to recognize same-sex marriages from other states for any purpose. However, some judges in states where same-sex marriage is not legal will and have recognized a same-sex marriage, for example, to grant a divorce. But without a uniform law that says all states must recognize out of state same-sex marriages, it's impossible to say what will happen in a non-recognition state.

If you have specific questions, you should contact a local family law attorney to find out what judges are doing in your particular county.  

 

Do same-sex couples face special concerns when it comes to taxes?

In a word, yes. Tax matters that can be pretty simple for heterosexual couples can get quite complicated for gay and lesbian couples.

However, as a result of two key rulings in 2013, tax issues just got a lot easier for many same-sex married couples.

The U.S. Supreme Court’s June 26, 2013  decision in the Windsor case made it clear that same-sex married couples living in one of the 14 U.S. jurisdictions that recognize same-sex marriage would qualify for federal benefits previously limited to opposite-sex married couples. However, the Court did not address whether the IRS (or other federal agencies) would recognize the marriages of same-sex married couples living in non-recognition states.

In August 2013, The U.S. Department of the Treasury ruled that all  same-sex couples that are legally married in any U.S. state, the District of Columbia, a U.S. territory or a foreign country will be recognized as married under all federal tax provisions where marriage is a factor. This includes provisions governing:

  • filing status
  • personal and dependency exemptions
  • standard deductions
  • employee benefits
  • IRA contributions
  • the earned income tax credit, and
  • the child tax credit.

The Treasury Department further clarified that federal recognition for tax purposes applies whether a same-sex married couple lives in a jurisdiction that recognizes same-sex marriage (such as California) or a non-recognition jurisdiction (such as Texas).

Now, legally married same-sex couples will file their 2013 federal income tax return using either the “married filing jointly” or “married filing separately” filing status.  They may also choose to file an amended return as a married couple and a refund claim for tax years 2010, 2011 and 2012. And they can move about the country knowing that their federal filing status will not change.

However, the ruling made it clear that same-sex couples in a civil union or those that are currently registered as domestic partners will not qualify for federal tax benefits - couples must be legally married to qualify. However, some of these same-sex couples may find relief by claiming their partner as a dependent on their return. To learn more, see Nolo's article Claiming an Unmarried Partner as a Dependent on Your Tax Return.

On a state level, same-sex married couples will generally only receive state benefits if they live in a recognition state. Same-sex married couples living in non-recognition states will fill out their state returns as single and their federal returns as married. This can get complicated, so it's best to consult a tax professional that is knowledgeable in same-sex tax issues for help.

To learn more about tax issues, see Nolo's article Tax Issues for Same-Sex Couples.

What are domestic partnership benefits?

Domestic partners are unmarried couples (of the same or opposite sex) who live together and seek the same benefits that are granted to their married counterparts. Some states recognize domestic partnerships, and more and more local governments and businesses do as well. For more information on same-sex relationship recognition, see Same-Sex Relationship Recognition by State.

Domestic partner benefits vary, depending on who is recognizing the partnership. Some states, like California, provide benefits that make domestic partnerships the functional equivalent of marriage. Cities and businesses may offer more limited benefits. Either way, benefits can include things like:

  • health, dental, and vision insurance
  • sick and bereavement leave
  • accident and life insurance
  • death benefits
  • parental leave (for a child you co-parent)
  • housing rights and tuition reduction (at universities), and
  • use of recreational facilities.

Usually, you must register as domestic partners in order to receive benefits. In states offering domestic partnership benefits, this may require filing a form with the court or Secretary of State. To learn more, see Nolo's article Domestic Partnership Benefits.

Can lesbian and gay couples adopt children?

Some states allow lesbian and gay couples to adopt children jointly, making both parents legal parents at the same time. Usually, these adoptions are done through domestic or international adoption agencies or independently (where the adopting parents deal directly with the birth parents or through an intermediary, like an attorney).

Another way to become legal parents is for one lesbian partner to give birth to the child and the other partner to adopt the child, either through a second parent or stepparent adoption. (To learn about second parent and stepparent adoptions, see Nolo's article Types of Adoption.) Gay male couples can do this too, by using a surrogate to carry a child born from one partner's sperm and a donor egg.

Some states specifically bar gay and lesbian couples from joint and second parent adoptions. To learn more about the legal landscape of same-sex couple adoption, see Nolo's article Gay and Lesbian Adoption and Parenting.

How does a married or registered same-sex couple end their marriage or domestic partnership?

If you have registered with a local government or business as domestic partners, ending that registration probably requires nothing more than filling out a form. If you are married and currently live in a state that recognizes same-sex marriage, follow your resident state's divorce procedures. Likewise, if you still live in the state in which you registered as domestic partners, follow your state's dissolution procedures -- most of these states treat domestic partnership dissolutions like divorces and require partners to follow divorce procedures in family court.

However, if you got married or entered a domestic partnership or civil union in a marriage-equivalent state and you currently live in a state that does not recognize the relationship, ending the relationship can get very complicated. Most states have a residency requirement in order to use the divorce courts. So you can't just travel to the state you got married in and file for divorce. Similar issues arise with domestic partnerships. Your best bet is to contact a divorce attorney who is well-versed in same-sex couple breakups and get advice on your specific situation. To learn more, see Nolo's article Breakup Advice for Gay Couples Who Married or Registered in More Than One Place.

To Learn More

For a practical guide, updated with the latest legal information and legislation, that will help you and your same-sex partner protect and exercise your rights, see A Legal Guide for Lesbian & Gay Couples, by Denis Clifford, Frederick Hertz and Emily Doskow (Nolo).

What is the status of same-sex marriage among the various states?

The legal landscape of same-sex marriage is ever-changing. As of July 2013, California, Connecticut, Delaware, the District of Columbia (D.C.), Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington allow same-sex couples to get married and enjoy all of the benefits of marriage provided by the state.

Other states recognize marriage-like relationships that provide varying levels of benefits to same-sex couples. Domestic partnerships are available in Nevada and Oregan and will continue to be available in California, D.C., and Washington (for senior couples) even though these states also allow same-sex marriage. Colorado, Hawaii, Illinois and New Jersey provide civil unions. Wisconsin provides some limited statewide spousal rights to same-sex couples.

To learn more about same-sex relationship recognition in the United States, see Nolo's article, Same-Sex Marriage: Developments in the Law.

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