Recognition of Existing Same-Sex Marriages

Many same-sex couples get married in a state or foreign country that recognizes same-sex marriage. Some couples already happen to live in these marriage-friendly places, and others travel there just to get married. The difficulty arises when those traveling couples return home, or when residents move to a state that doesn't provide for same-sex marriage. Will marriages that were valid where they were entered into be recognized in these other places -- either by state authorities, private entities (like employers), or the federal government?

Many important considerations ride on the answer to this question -- from how to fill out your tax returns to whether your spouse is eligible for benefits through your employer's health plan. But it isn't always easy to figure out whether (and to what extent) your same-sex marriage will be recognized.

No Recognition by the Federal Government -- For the Most Part

Section 3 of the federal Defense of Marriage Act (DOMA) explicitly states that the federal government only respects marriages between a man and a woman. So, even if you were legally married in a foreign country or your home state, a same-sex marriage is not recognized for purposes of the marriage benefits that are authorized under federal law. This means that you and your same-sex spouse cannot take advantage of hundreds of laws that confer rights, protections, and benefits to married couples -- from Social Security survivor benefits to federal tax benefits and federal employee health and retirement benefits. (To learn more about the benefits denied to same-sex couples, see Nolo's article Federal Marriage Benefits Denied to Same-Sex Couples.)

Recently, there have been a few small changes in the federal realm. For example, one regional division of the United States Department of Justice recognized a parent-child relationship between a nonbiological parent and a child based on a same-sex couple's registration as domestic partners, even though there was no legal adoption by the nonbiological parent. And, in June 2009, President Obama signed the Presidential memorandum on Federal Benefits and Non-Discrimination. The memorandum extends several employment benefits to the partners of gay and lesbian federal employees.

Although President Obama has not repealed DOMA, it is possible that some federal agencies may begin to shift their policies towards recognizing marriages and partnerships among same-sex couples. However, for now, it is safe to assume that for the most part the federal government will not recognize your same-sex marriage.

Recognition States

As of March 2010, Connecticut, the District of Columbia, Iowa, Maryland, Massachusetts, New Hampshire, New York, and Vermont recognize same-sex marriages made in other states or countries. As long as you were legally married in a state or country that allows same-sex marriage, these states will treat you like any other married couple. You can file a joint state tax return, receive health and retirement benefits for your spouse if you work for the state government (and equivalent benefits to married couples under state law), and enjoy numerous other benefits that come with marriage.

Keep in mind, though, that the federal government still will not recognize your marriage even if you live in one of these states. So, for example, a gay married couple in Massachusetts may take advantage of state laws conferring the benefits of marriage, but not any of the marriage benefits provided by federal law.

The schizophrenic treatment of your same-sex marriage -- recognition by some states but not by the federal government -- makes for some tricky financial and legal decisions. For example, when you file a joint state tax return, you need to fill in numbers from your federal return. But since you can't file a joint federal return, you don't have these numbers readily available. (For more details about the tax return conundrum, see Nolo's article Tax Issues for Same-Sex Couples.) This confusion crosses over into estate planning and other legal areas.

Non-Recognition States

Forty states have passed "defense of marriage " statutes that expressly state that the government will not recognize a same-sex marriage. If you live in one of these states, the state will not recognize your same-sex marriage. This means that you can't enjoy health plan benefits, state tax benefits, protection from discrimination, or other legal rights that married spouses enjoy. And, if your relationship breaks up, chances are the local family court will not accept your divorce filing or issue a divorce decree, which you would need before you're able to marry or partner with someone else. To find out whether 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."

Uncertainty in Some States

There are a number of states (approximately six or seven at current count) that don't have a defense against marriage statute, but also don't permit same-sex couples to get married in their state. Whether your marriage is recognized in these states is uncertain.

For example, most New York courts have treated foreign same-sex marriages as valid and awarded property and bestowed parentage rights based upon those marriages. Some courts have even ordered various state agencies to honor same-sex marriages from other states and to extend health benefits to the spouses of lesbians and gay men. But, at the same time, other courts in some of these six or seven "uncertain" states have refused to honor same-sex marriages from other states.

In states that don't have a firm policy on same-sex marriages, employers or other private companies are free to make their own decisions as to whether they will extend health, retirement, and other benefits to legal spouses of gay or lesbian employees.

The Changing Landscape of Same-Sex Marriage Recognition

Whether a state allows same-sex couples to get married can change from day to day and month to month. In 2009 alone, Iowa, Vermont, and New Hampshire were added to the list of states that recognize same-sex marriage; in 2010, Maryland joined the list of states that will recognize same-sex marriages performed in other states or countries. And Norway, Sweden, and Portugal joined the ranks of foreign nations such as the Netherlands, Belgium, Canada, Spain, and South Africa in recognizing same-sex marriage. At the same time, in states like Maine and California, voter petitions eliminated marriage rights for same-sex couples. (To keep up-to-date on what states are doing in the same-sex marriage arena, visit Nolo's blog Queer Justice, at www.queerjustice.com.)

For a comprehensive breakdown of the complex and ever-changing rules of same-sex relationship laws, a review of all the issues that influence the decision to marry, and practical guidance on one of the most important decisions a couple can make, get Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnership & Civil Unions, by Frederick Hertz and Emily Doskow (Nolo).