If you are legally married to your same-sex partner (that is, you married in a state, country, or province that recognizes same-sex marriage), can you file a joint bankruptcy petition? Until recently, the answer was no. But as of June 26, 2013, the answer is yes. That's because on that day, the U.S. Supreme Court struck down Sectin 3 of the Defense of Marriage Act (DOMA) in United States v. Windsor, 570 U.S. ___ (2013). That historic decision cleared the way for legally married same sex couples to enjoy the federal benefits conferred upon married couples, including the right to file a joint bankruptcy petition.
(To learn about other areas of the law affected by this decision, see The Supreme Court's DOMA Decision topic page.)
Joint Bankruptcy Petitions
Bankruptcy law allows married couples to file one bankruptcy petition together – called a joint bankruptcy petition. For most couples, filing a joint bankruptcy is more advantageous than filing an individual bankruptcy, but not always. (To learn more about joint bankruptcy and its pros and cons, see our Filing Considerations for Married Couples area.)
Same-Sex Married Couples and Joint Bankruptcy
Although the bankruptcy code never defines a married couple as two spouses of different genders, until recently, many bankruptcy courts would not allow same-sex married couples to file joint bankruptcy petitions. This was in large part because Section 3 of the federal Defense of Marriage Act or DOMA (1 U.S.C. § 7 and 28 U.S.C. § 1738C) which states that the federal government does not recognize same-sex marriage and that states may disregard such marriages performed in other states.
Prior to June 2013, some bankruptcy courts allowed same-sex married couples to file joint bankruptcy petitions. And on July 6, 2011, the U.S. Department of Justice stated that it would no longer oppose joint bankruptcy petitions filed by same-sex married couples. In theory, this would mean that the U.S. Trustee for the different bankruptcy jurisdictions would not oppose such petitions. In practice, however, that was not always the case.
Now that the U.S. Supreme Court has declared DOMA unconstitutional, however, the path is cleared for same sex married couples to file joint bankruptcy petitions.
Same-Sex Couples That Are Not Legally Married
If you are not legally married however, you cannot file a joint petition. That leaves the majority of gay couples out of luck. As the list of states that allow same sex couples to marry expands, the number of same sex couples that can choose this important bankruptcy right will expand as well.