Whether or not you favor marriage as a social institution, there's no denying that it confers many rights, protections, and benefits -- both legal and practical. Some of these vary from state to state, but the list typically includes:
- Filing joint income tax returns with the IRS and state taxing authorities.
- Creating a "family partnership" under federal tax laws, which allows you to divide business income among family members.
Estate Planning Benefits
- Inheriting a share of your spouse's estate.
- Receiving an exemption from both estate taxes and gift taxes for all property you give or leave to your spouse.
- Creating life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.
- Obtaining priority if a conservator needs to be appointed for your spouse -- that is, someone to make financial and/or medical decisions on your spouse's behalf.
- Receiving Social Security, Medicare, and disability benefits for spouses.
- Receiving veterans' and military benefits for spouses, such as those for education, medical care, or special loans.
- Receiving public assistance benefits.
- Obtaining insurance benefits through a spouse's employer.
- Taking family leave to care for your spouse during an illness.
- Receiving wages, workers' compensation, and retirement plan benefits for a deceased spouse.
- Taking bereavement leave if your spouse or one of your spouse's close relatives dies.
- Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility.
- Making medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.
- Consenting to after-death examinations and procedures.
- Making burial or other final arrangements.
- Filing for stepparent or joint adoption.
- Applying for joint foster care rights.
- Receiving equitable division of property if you divorce.
- Receiving spousal or child support, child custody, and visitation if you divorce.
- Living in neighborhoods zoned for "families only."
- Automatically renewing leases signed by your spouse.
- Receiving family rates for health, homeowners', auto, and other types of insurance.
- Receiving tuition discounts and permission to use school facilities.
- Other consumer discounts and incentives offered only to married couples or families.
Other Legal Benefits and Protections
- Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).
- Suing a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these laws are available in only a few states).
- Claiming the marital communications privilege, which means a court can't force you to disclose the contents of confidential communications between you and your spouse during your marriage.
- Receiving crime victims' recovery benefits if your spouse is the victim of a crime.
- Obtaining immigration and residency benefits for noncitizen spouse.
- Visiting rights in jails and other places where visitors are restricted to immediate family.
Same-Sex Marriage, Civil Unions, and Domestic Partnerships
If you are in a same-sex marriage, you are now entitled to federal benefits under the recent U.S. Supreme Court case, U.S. v. Windsor. However, the rules for eligibility will vary by federal agency.
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 have 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.
The same goes for the IRS and eligibility for federal tax benefits. In August 2013, 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.
See The IRS Will Recognize All Same-Sex Marriages, for more information about federal tax benefits for same-sex married couples.
However, some federal agencies, such as 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 you 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.
If you are in a domestic partnership or civil union in any of the states that offer those relationship options, none of the benefits of marriage under federal law will apply to you, because the federal government does not recognize these same-sex relationships. For example, you may not file joint federal income tax returns with your partner, even if your state allows you to file your state tax returns jointly. And other federal benefits, such as Social Security death benefits and COBRA continuation insurance coverage, may not apply.
To learn more about the rights and benefits available to same-sex couples, consult a lawyer with expertise in this area and see Making It Legal:A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by Frederick Hertz with Emily Doskow (Nolo).