In 2006, I married my same-sex partner in Canada, where we were living at the time. We are contemplating a move to the United States. Will our marriage be recognized there?
Canada legalized marriage between same-sex couples in 2005. Since then, same-sex partners all over the world can travel to Canada, obtain a marriage license, and in a few short days be lawfully wed. But if you move to the United States (U.S.), whether your Canadian marriage will be recognized will depend on where you live.
As of January 1, 2010, if you move to Massachusetts, Connecticut, Iowa, Vermont, or New Hampshire, your new resident state will recognize your marriage. The District of Columbia (D.C.) was added to this list in March 2010. In these states, and D.C., you can file a joint state tax return, receive health and retirement benefits for your spouse if you work for the state government, and enjoy all the other benefits that come with marriage.
If you move to one of the forty or so states that have enacted a "defense of marriage" statute (which expressly states that the government will not recognize a same-sex marriage), your new resident state will not recognize your marriage. For all practical purposes, the state will treat you and your partner as if you were single. To find out if your state has a defense of marriage act or recognizes same-sex marriage, visit Lambda Legal's website at www.lambdalegal.org and click "In Your State."
An exception to the above rule is California. Although California recently amended its constitution to limit marriage to a man and a woman, it also passed a law (effective January 1, 2010) that provides that California will recognize the marriages of same-sex couples married outside of California if they married before November 5, 2008. California will also confer all of the rights and benefits of marriage on same-sex couples married outside of California on or after November 5, 2008, but won't designate the union as a "marriage."
If you move to one of the states that does not allow same-sex couples to marry but does not have a defense of marriage statute, whether your marriage will be recognized is uncertain. For example, in New York State, some courts are treating Canadian marriages as valid and are awarding property and bestowing parentage rights based upon the marriage. Some have even ordered state agencies to extend health benefits to the spouses of lesbians and gay men. But other courts have refused to recognize Canadian marriages of same-sex couples. To keep abreast of the frequently changing law in this area, see Nolo's Queer Justice blog at www.queerjustice.com.
Regardless of how your new resident state treats your same-sex marriage, the U.S. federal government will not recognize your marriage. This means you will not be able to enjoy the hundreds of rights, protections, and benefits that federal laws provide to married couples -- including Social Security survivor benefits, federal tax benefits, and health and retirement benefits for federal employees and their families. (To learn more about the benefits that are denied to same-sex couples, see Nolo's article Federal Marriage Benefits Denied to Same-Sex Couples.)
For a comprehensive guide to same-sex relationship laws in the U.S., see Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by Frederick Hertz and Emily Doskow (Nolo).
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