For same-sex couples living in California, Connecticut, Delaware, District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington, same-sex marriage is now a reality. If you live in any of these states, you and your partner have a decision to make that same-sex couples have never had to make before: whether marriage is right for you.
Civil unions are available in Colorado, Hawaii, Illinois, and New Jersey, and while they offer almost all of the benefits of marriage, couples in civil unions who are not legally married don’t qualify for federal benefits such as tax benefits or Social Security benefits. Delaware, Rhode Island, Vermont, New Hampshire and Connecticut had civil unions, but with the legalization of same-sex marriage in each of these states, valid civil unions have been (or will be) merged or converted into marriages.
A few other states – Oregon, Nevada, and Wisconsin– offer only domestic partnerships (or something similar,) but they provide limited rights that don't really approximate marriage. Still, for folks living in these and other states, it's never too early to think about what you might do if new relationship options become available where you live. With all major polls now showing that a majority of Americans supports same-sex marriage, the marriage equality battle in many states is just beginning – same-sex marriage bills are coming up for vote in several states, and a few same-sex marriage cases will be decided soon in various state supreme courts. (For up-to-date information, see Same-Sex Marriage: Developments in the Law.)
Factors to Consider
Here are some things to consider as you think about how you want to structure your relationship.
Having children. In most cases, if you have children or hope to raise a family, getting married is probably the right choice. Both partners in a married couple have the same rights and responsibilities to raise and support children of the relationship, and in a divorce, both can seek visitation and custody. If one parent dies, the other one steps right in as the primary legal parent. It's pretty difficult to make these sorts of arrangements absent a legal marriage or a second parent or stepparent adoption. (To learn about second parent or stepparent adoptions, read Nolo's article Gay and Lesbian Adoption and Parenting.)
Jointly owning property. Marriage isn't a prerequisite for owning property together, but if you get married, in most situations your property will be jointly owned regardless of who paid for it. This is the reverse of the presumption that applies to unmarried couples. Getting married may be the most efficient way of establishing a property merger. If keeping things separate is more to your taste, you will have to sign a prenuptial agreement to avoid the joint ownership presumptions of a legal marriage. (To learn more about prenuptial agreements, see the Prenuptial Agreement area of Nolo's website.)
Splitting up property. In many states, each married spouse's earnings are owned by the two of you, and, if the marriage breaks up -- regardless of who's at fault -- you each generally get half of everything you've accumulated. By contrast, if you are unmarried, your property is co-owned only if you have an agreement to that effect, and likewise for debts and obligations. Divorcing spouses are also entitled to seek alimony if the marriage doesn't last, without the need for any explicit contract providing for post-separation support.
Formalities. Every marriage requires a formal ceremony, and every marital separation requires some kind of formal court action -- and quite often the help of a lawyer. Unmarried couples can break up informally, on their own terms.
Inheritance and death taxes. Without a legal marriage, a couple needs to sign several agreements to create even a partial framework of protection in the event of death, and certain tax benefits are forever denied to unmarried couples.
If you are married, however, the surviving spouse generally inherits all the property if his or her spouse dies without a will, and the surviving spouse does not have to pay inheritance and gift taxes.
Until recently, same-sex married couples were not able to benefit from the exemption from inheritance and gift taxes, but under the June 26, 2013 Supreme Court Decision in U.S. v. Windsor, same-sex couples are considered legally married for federal purposes and now qualify for federal benefits, including immigration status, Social Security benefits, and laws exempting married couples from inheritance taxes and gift taxes just as opposite-married couples do.
To learn more about the Windsor case, see Same Sex Married Couples Will Soon Receive Federal Benefits.
However, some federal agencies, such as the Social Security Administration, use a married couple's place of residence (where the couple lives) to determine wether the couple is in a valid marriage and therefore eligible for federal benefits. As a result, same-sex couples living in one of the 14 jurisdictions that recognize same-sex marriage will qualify for Social Security benefits based on their spouses' work records, while those living in non-recognition states will not.
Eligibility for immigration status, federal employee benefits and military benefits is not determined by place of residence, but rather by place of celebration (where the marriage was performed). As long as the marriage was legally entered into in any U.S. state, the District of Columbia, a U.S. territory, or a foreign country that recognizes same-sex marriage, same-sex married couples will qualify for these benefits.
After the Windsor decision, there was a lot of concern and speculation about whether the IRS would recognize same-sex married couples living in non-recognition states. But in August 2013, the U.S. Treasury Department 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).
Transfer taxes. In theory, transfers of property upon dissolution of the relationship are tax-free for legally married couples, but not for unmarrieds. Under Windsor, same-sex married couples are able to make such spousal transfers tax-free.
Government benefits. Marriage can bestow a bevy of important benefits, including military or Social Security benefits, health care benefits, and nursing home coverage. Marriage may also qualify you for unpaid leave from your job under the Family Leave Act. (To learn more about this Act, read Nolo's article Taking Family and Medical Leave.) However, be aware that a married person's income could disqualify a spouse from receiving Social Security, welfare, or medical benefits. As stated above, some of these benefits are limited to same-sex couples living in recognition states.
Immigration. A legal marriage is the only reliable method of providing a foreign partner with the privileges of immigration to this country if the person doesn't qualify under work or other provisions of the Immigration Act.
Making the Decision to Marry or Not
If you need to make a decision about how to structure your relationship, first decide whether you fall into one of the got-to-marry or better-not-marry situations. Raising kids or facing a serious illness, for example, generally favors a marriage (unless it disqualifies you for Medicaid), whereas getting saddled with your partner's debts or losing Social Security benefits probably favors a no vote.
If you don't find yourself at either extreme, take a close look at the marital property rules for your state, evaluate the benefits and burdens given your personal situation, and get a good sense of what being married would do for you financially.
Then, consider whether being married feels right for both of you emotionally. If the answers come back positive for both of you, then proceed, but consider creating a prenuptial agreement if any aspect of the traditional marriage structure doesn't meet your needs. If the impact of marriage feels unduly negative for one or both of you, however, maybe you should hold off.
Want More Information?
To learn more about issues facing same-sex couples, consider these books by Nolo:
- A Legal Guide for Lesbian & Gay Couples, by Denis Clifford, Frederick Hertz, and Emily Doskow
- Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by Frederick Hertz and Emily Doskow.