How you can respond to these forms of housing discrimination depends on:
Historically, federal law did not protect gays, lesbians, or transgender people from discrimination by landlords and other housing providers. In January 2021, however, President Biden issued the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (the “Order”). The Order stated that going forward, the federal Fair Housing Act (42 U.S.C. 1681 and following) prohibited discrimination on the basis of gender identity and sexual orientation. In response to the Order, the U.S. Department of Housing and Urban Development (HUD) released a memo stating that HUD would begin accepting and investigating complaints of discrimination based on gender identity or sexual orientation.
If you believe that you have been subjected to illegal housing discrimination on the basis of gender identity or sexual orientation, you can file a federal fair housing complaint with HUD’s Office of Fair Housing and Equal Opportunity (FHEO).
Many state and local laws address one or more of the following forms of discrimination.
Each law has its own definition of these protected classes—check the law carefully to see exactly what is covered.
Several states and cities prohibit sexual orientation housing discrimination. Many of these same states and cities also prohibit gender identity and gender expression housing discrimination. Some laws differentiate between gender identity and gender expression discrimination; others lump the two forms of discrimination together. You’ll want to check your state and local laws to find out whether they prohibit one, two, or all three of these forms of discrimination.
State and local laws change frequently. To find out how to pursue fair housing complaints based on sexual orientation, gender identity, and gender expression discrimination in your state, check with your state’s fair housing office. You can find a list of state agencies on FHEO’s website. For city and local information, check out the Human Rights Campaign’s Municipality Database—you can search for your city or zip code to find out the current status of protections against housing discrimination. Finally, you can also contact the National Gay and Lesbian Task Force for more information.
The timing of the discriminatory behavior directly affects what remedies you might have. As discussed below, you have limited options if the discrimination occurs at the application stage. However, if you experience discrimination after you’ve signed a lease or rental agreement, you have a number of options for fighting back.
If you are denied a rental at the application stage, in many cases there's not much you can do about it. Most of the time, the landlord either doesn’t tell you why you were rejected or invents a reasonable-sounding, nondiscriminatory explanation to conceal the true (discriminatory) reason. If the landlord’s refusal was clearly based on gender identity or sexual orientation, you could pursue a claim under federal, state, or local law.
If you have a lease, your tenancy cannot be terminated until the lease expires unless you have broken an important lease clause (such as failing to pay rent or violating a no-pets rule), or you have committed an illegal act.
So, a landlord who attempts to evict you solely on the grounds of your sexual orientation would have a hard time prevailing in a federal fair housing complaint. You can also file a fair housing complaint with your state fair housing office.
Renters with month-to-month rental agreements might be in greater danger of eviction. Landlords can terminate month-to-month tenancies by giving the required notice, which is 30 days in most states. The landlord need not give a reason for the termination.
However, landlords are not allowed to terminate rental agreements for a discriminatory reason, so if you suspect sexual orientation discrimination, you can pursue a federal fair housing complaint or contact your state fair housing office.
Tenants in areas with rent control might have another avenue for complaints—most rent control laws also have eviction protection rules prohibiting termination of month to month tenants unless they have violated the rental agreement, have seriously broken the law (by selling drugs, for example), or the termination is based on enumerated "just causes" in the rent control or eviction protection law.
Nolo's LGBTQ Law section also contains a wealth of articles addressing laws and rules that might affect members of the LGBTQ community.
]]>The landmark Obergefell decision means that same-sex marriages are now recognized by the federal government and all other U.S. states and territories. Prior to the ruling, some states allowed same-sex couples to marry and others didn’t, causing confusion about whether (and to what extent) same-sex marriages were recognized by federal and state agencies and private entities like employers.
Not all countries recognize same-sex marriages. Couples planning to travel or move abroad need to know about marriage equality around the world.
Prior to Obergefell, the federal Defense of Marriage Act (DOMA) said, among other things, that no state had to recognize the legal validity of a same-sex relationship even if the relationship was recognized by another state. In 2013, the U.S. Supreme Court found parts of DOMA unconstitutional in United States v. Windsor (570 U.S. 744), before granting same-sex couples the right to marry in Obergefell in 2015.
Federal recognition of same-sex marriage strengthens families and offers equal status to same-sex couples. It also has practical benefits for same-sex couples, including:
In 2022, after the Supreme Court overturned Roe v. Wade, lawmakers were motivated to pass the Respect for Marriage Act (RFMA). The RFMA requires states to recognize same-sex and interracial marriages across state lines. The law also guarantees same-sex and interracial couples federal marriage benefits.
Prior to Obergefell, same-sex couples faced a confusing patchwork of laws concerning marriage that varied widely from state to state. Efforts to legalize same-sex marriage began to pop up across the country in the 1990s.
Prior to allowing same-sex marriage, some states offered same-sex couples relationship recognition like civil unions and domestic partnerships, but those unions weren’t necessarily recognized by other states or the federal government. Other states passed laws banning gay marriage. Most of the first states that allowed gay marriage did so because of court rulings, rather than state laws or ballot initiatives.
As marriage equality laws gained momentum, states that allowed same-sex marriage started recognizing same-sex marriages made in other states. But states with “defense of marriage” laws (bans on gay marriage) didn’t recognize any same-sex marriages. Other states had no firm policy on same-sex marriages, so employers and private companies were free to make their own decisions about whether to extend health, retirement, and other benefits to same-sex spouses of employees.
But the U.S. Supreme Court put an end to all the legal uncertainty about same-sex marriage in 2015 with the Obergefell decision. States have no choice now but to allow and recognize same-sex marriages.
Along with the legal right to get married, same-sex couples in the U.S. also have the right to get divorced, as long as they meet their state's requirements to file for divorce. The procedures and laws for same-sex divorce are the same as for all divorces.
However, there are particular issues that crop up in some same-sex divorces, especially for couples who have children or lived together for years before they were able to marry legally. Also, couples who had registered domestic partnerships or civil unions before they married might have to terminate those partnerships as well. In some states, like California, you can get a divorce and end your domestic partnership in the same legal proceeding. (Cal. Fam. Code § 299 (2023).)
A growing number of governments around the world are legally recognizing same-sex marriages. As of 2022, dozens of countries have laws allowing LGBTQ people to marry. Most of the countries are in Europe and the Americas.
To keep up-to-date on same-sex marriage around the world, visit the Human Rights Campaign Foundation.
]]>The federal civil rights protections in the Affordable Care Act (Section 1557) guard LGBTQ people from discrimination based on sex in any program or facility that gets federal funding for health care services, including Medicare. And many—but not all—states have antidiscrimination laws that protect LGBTQ people from being unfairly treated in public places, including doctors’ offices and hospitals.
Prior to the passage of the Affordable Care Act (ACA) in 2010, no federal law prohibited sex discrimination in health care. Now, Section 1557, the antidiscrimination section of the ACA, bars discrimination based on race, color, national origin, sex, age, or disability in all health care programs or activities that receive federal funding. (42 U.S. Code § 18116 (2022).)
The Obama administration interpreted Section 1557’s ban on sex discrimination to include discrimination based on gender identity. The Trump administration briefly reversed that reading of the law until it was restored by the Biden administration in 2021.
Section 1557 applies to:
For example, Section 1557 applies to hospitals that accept Medicare, doctors who receive Medicaid payments, and federal programs like Head Start.
Federal antidiscrimation protections have increased LGBTQ access to health care and services in many ways, including:
Some states have antidiscrimination laws that prohibit discrimination in “public accommodations.” Public accommodation laws typically protect LGBTQ people and others in places like stores, restaurants, hospitals, and doctors’ offices—anywhere other than home, work, or school.
As of 2022, over 20 states have public accommodation laws explicitly barring discrimination based on sexual orientation and gender identity. An equal number of states have no laws barring LGBTQ discrimination in public accommodations. The remaining states prohibit sexual orientation discrimination only or interpret existing prohibitions on sex discrimination to include discrimination based on sexual orientation and gender identity.
State laws and policies on private insurance, Medicaid, and state employee benefits also vary widely. Some states—like California and New York—protect LGBTQ people from being unfairly denied health insurance coverage or being unfairly excluded from coverage for certain health care procedures on the basis of sexual orientation or gender identity. Other states—like Arkansas—explicitly permit insurers to refuse to cover gender-affirming care.
An emerging hot-button issue in 2022 is gender-affirming medical care for transgender youth. As of March 2022, over a dozen states have restricted access to gender-affirming care or are currently considering laws that would do so. Many of the laws carry criminal penalties for health care providers, and sometimes families, who provide or seek gender-affirming care for minors.
Historically, medical professionals have contributed to bias against LGBTQ people. But the American Medical Association (AMA) is now working to expand access to medical services, reduce stigma in treating LGBTQ patients, and break down discriminatory barriers to health care.
The AMA Code says: "Physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, sexual orientation, gender identity or any other basis that would constitute invidious discrimination."
In fact, the AMA has adopted dozens of rules and opinions calling for the equal treatment of gay, lesbian, bisexual, and transgender patients, doctors, and medical students. The AMA supports access to gender-affirming care and the end of discredited practices like so-called “conversion therapy.”
A few states have laws that allow businesses and government officials to deny services, including health care (except in emergency situations), to LGBTQ people if doing so would conflict with sincerely held religious beliefs. For example, a doctor in these states may refuse to provide fertility treatments to same-sex couples, hormone-replacement therapy for transgender people, or counseling for bisexual people.
Religious exemptions (sometimes called conscious clauses) are not new in medicine. Almost immediately after Roe v. Wade legalized pre-viability abortions nationwide in 1973, Congress passed a law clarifying that health care providers, hospitals, and clinics that receive federal funding don’t have to provide abortions or sterilizations if they have religious objections to the procedures. A number of states have abortion-related conscious clauses too.
But LGBTQ-related religious exemptions for health care providers might conflict with Section 1557 of the ACA, which applies to nearly every hospital, insurer, and private practice in the country. So, an LGBTQ person who lives in a state with a broad conscious clause, may be able to file a federal lawsuit against a doctor who refuses to provide gender-affirming care or fertility treatments based on that person’s sex, sexual orientation, or gender identity.
If you believe a doctor or employee has refused to treat you because of your sex, sexual orientation, or gender identity, you can do any of the following:
You can also file a civil rights complaint with the HSS Office of Civil Rights (OCR). The OCR will investigate your complaint and potentially get the program or provider to change its discriminatory practices.
If you would like to file a civil lawsuit, talk to a lawyer. You can typically file a lawsuit instead of or in addition to filing a complaint. Learn more about hiring and working with a lawyer. You can also connect with a lawyer directly from this page.
Lambda is a national legal organization whose mission is to protect the civil rights of LGBTQ people. Lambda’s Legal Help Desk provides information and resources relating to discrimination based on sexual orientation, gender identity, gender expression, and HIV status.
]]>Lesbians and gay men bring children into their lives in a number of ways. In lesbian couples, frequently, one partner gives birth to a child, and the other partner—the second parent—becomes a legal parent through a second parent or stepparent adoption. Gay men can do virtually the same thing by using a surrogate to carry a child born from one partner's sperm and a donor egg.
Some same-sex couples may choose to adopt children jointly so that both partners are legal parents from the beginning. Lesbian and gay singles and couples can adopt children through agencies or independent adoptions, and even through international adoptions (though international adoption may be more difficult now that the United States has adopted the Hague Convention).
In a historic ruling in 2015, the United States Supreme Court (USSC) legalized same-sex marriage throughout the country. (Obergefell v. Hodges, 576 U.S. 644). As a result of the ruling, all 50 states have overturned or rewritten laws to allow married same-sex couples the privilege of adopting children. If you are married and would like to adopt your spouse's biological child, you can apply for a stepparent adoption in your state.
However, if you're unmarried, the journey to building your family may become more complicated if you live in a state that doesn't allow second parent adoption. Second parent adoption is a legal procedure where an unmarried partner applies to adopt the other partner's biological child. For example, if you and your partner are not married, but your partner has a child from a previous relationship, and you'd like to become that child's other legal parent, you can apply for a second parent adoption in your state. Once the court hears your case and approves the adoption, you become the second legal parent, with the same rights and responsibilities as if you were a biological parent.
Although the United States has made significant progress in the fight for equality for the LGBTQ community, several states still prohibit unmarried, same-sex couples from applying for second parent adoption. For a state-by-state overview of second parent adoption laws and cases, visit the Lambda Legal Defense and Education Fund's website at www.lambdalegal.org.
If you live in a state that prohibits second parent adoption, you should speak with an attorney about creating a co-parenting or custody agreement, which will detail each parent's rights and responsibilities for the child. Although some states don't recognize these agreements as legally binding, if you and the other parent experience trouble in your relationship in the future, you can present the agreements as evidence of your parental intentions if you end up in court later.
Because it's essential that you know your local law before you decide to raise a child together, we strongly recommend that you seek legal advice when you are considering parenting. Search out gay and lesbian parenting groups in your state. If you don't know where to start, try the Queer Resources Directory ( www.qrd.org), which includes many parenting sites. The following organizations can also provide you with information: The Human Rights Campaign (www.hrc.org), The National Center for Lesbian Rights (www.nclrights.org), Lambda Legal Defense and Education Fund (www.lambdalegal.org), and Gay and Lesbian Advocates and Defenders (www.glad.org).
It's no secret that throughout history gay and lesbian couples have faced roadblocks when creating their families. Although every state in the nation allows married same-sex couples to adopt, whether privately or through state foster care, couples should prepare for potential roadblocks along the way.
The legal process for adoption is now the same for same-sex couples as for opposite-sex couples. However, private and religious adoption agencies are fighting for the right to deny well-qualified, loving couples the right to adopt by arguing it violates religious freedoms. As of 2020, the United States Supreme Court has not issued a ruling on its most recent religious freedom adoption case.
It's important for prospective parents to thoroughly research agencies that welcome same-sex adoptions to avoid any potential heartbreak.
Although international adoption is available to married heterosexual couples throughout the world, same-sex couples often face challenges adopting from countries that do not recognize same-sex marriage. Some countries explicitly ban adoptions to the same-sex community, regardless of qualifications.
There are very few countries that permit international adoption to same-sex couples. If the country you wish to adopt from does allow adoption, the legal process may take significantly longer and be more expensive than domestic adoption. If you're successful with international adoption, you may still need to go through the United States stepparent adoption process to ensure you receive the full rights and benefits of adoption once you return to the your home state.
A legal parent is a person who has the right to live with a child (full or part-time) and to make decisions about the child's health, education, and well-being. A legal parent is also responsible for financially supporting the child. When a married couple has or jointly adopts a child, the law automatically recognizes both partners as legal parents. As a result, even if they split up, they both remain legal parents.
While same-sex marriage is legal throughout the country, there are still unanswered questions about both parents' presumption of biological parentage. In other words, although the law now recognizes same-sex marriages, couples often hit roadblocks when attempting to define the biology of their family.
For example, if an opposite-sex couple marries and the wife births a child, the court (and law) presume that the husband is the biological father. As a result, the father automatically has rights and responsibilities for the child. In a same-sex marriage, however, when one partner births a child, the law is often unequal in applying the biology standard to the other spouse. While some states have progressed in giving same-sex couples the same rights as opposite-sex couples, some states continue to make it difficult for same-sex couples to create their families.
Whether you're in a state that recognizes your rights as a same-sex married couple or not, attorneys continue to recommend that same-sex partners complete stepparent adoptions on behalf of the nonbiological parent. The adoption serves as extra protection for the family and ensures the parents and the children receive the same state and federal benefits as an opposite-sex family.
For unmarried, same-sex couples, the law doesn't consider the second parent a legal parent in some states. As a result, the nonbiological parent has few, if any, legal rights with regard to the child unless the couple applied for and received a second parent or stepparent adoption.
A second parent's status (the nonlegal, nonbiological parent) is most likely to become an issue if a same-sex couple splits up. When unmarried, heterosexual parents separate and can't agree on custody terms, courts will resolve the troubles. But, unmarried gay and lesbian couples don't usually have these built-in protections.
In fact, many courts say that a second parent has no rights regarding the child of a partner, even if the second parent has spent years helping with homework, patching up scrapes, and giving and receiving unconditional love. At worst, the second parent may be treated by the courts as a stranger, giving the legal parent an absolute right to deny all future contact between the ex and the child.
A handful of courts take the opposite view, awarding visitation to a nonlegal parent after finding the second parent to be such a critical part of the child's life that it would be detrimental to the child not to grant at least some continuing contact with the child. These courts may call the second parent a "de facto parent" or "psychological parent," meaning that the parent has lived with the child and fulfilled every responsibility and aspect of nurturing and discipline such that the only tie not satisfied is the legal or biological one.
In addition to looking at the reality of the parent-child relationship in these situations, courts may consider the following factors in the relationship between the child and the nonlegal parent:
Married same-sex couples going through a divorce, theoretically, should have the same protections as opposite-sex couples when it comes to child custody and visitation. However, as discussed earlier in this article, there are still discrepancies throughout the United States on how courts handle these issues. If you're contemplating a divorce, but you're worried about your rights as a parent, speak with an experienced attorney in your state before you file your paperwork.
If you've committed to joint parenting but can't adopt (or choose not to), the first thing you should do is write up a parenting agreement. The agreement should specify that, although only one of you is the legal parent, you both consider yourselves parents of your child, with all the rights and responsibilities that come with parenting. Include language that clearly states your intentions to continue co-parenting even if you end your relationship.
It's also wise to go further and cover financial issues, as well as the legal parent's intention to provide the second parent with generous visitation, access to school and social events, and so forth, in the case of a break-up.
If the unfortunate does occur and you split up, honor your agreement. You've both agreed to co-parent without the legal advantages and protections of adoption, so it's up to both of you to put your differences aside and make your child's needs a priority. If you can't resolve the issues amicably, you must take your chances with your state's court system. The outcome of such a battle is anything but certain.
]]>First things first. If you’re an unmarried couple, regardless of whether you’re an LGBTQ couple or not, creating a solid estate plan may have added urgency for you. An estate plan can ensure that your relationship is recognized after one of you dies, and that the surviving partner has access to as many of the benefits of surviving spouses as possible.
A will or living trust is the heart of any estate plan. A will in particular is a simple and relatively inexpensive document that you may be able to make yourself. With a will, you can:
If you die without a will or living trust, your state’s laws of intestate succession will determine who inherits from you, and your partner of many years can end up with nothing.
You can make a simple will or living trust yourself with WillMaker & Trust. If you want a more complicated document, see a lawyer for help.
Probate is the court process of wrapping up your estate after you die. Probate can be a long and expensive process, and it's rarely a benefit to your heirs. Avoiding probate may be more complicated for unmarried couples because, in most states, they can’t take advantage of laws that allow property to pass to spouses without probate.
You can avoid probate by using these estate planning tools:
Additionally, most states have simplified probate procedures for small estates. So if you don’t have much property, you might not need to plan for probate at all. Learn more about Probate Shortcuts in Your State.
Health care directives let you set out your wishes for end-of-life health care, in case you can’t speak for yourself. There are two pieces to a health care directive:
In some states, there two parts are actually two separate documents, while in other states, these two parts are combined into one.
When you make a health care directive (or power of attorney for health care), you can designate your partner as the person you want making health decisions for you in the event you become incapacitated. This is especially useful if your family is unaware of, or has not fully accepted, your relationship, as it gives your partner the legal authority to make medical decisions on your behalf.
Learn more about Health Care Directives.
With a financial power of attorney, you give another person power over your finances. Again, if you anticipate incapacity, or just want to make sure that your partner has the legal authority to take care of your finances in case of emergency, consider making a durable power of attorney for finances.
Learn more about how Health Care Directives and Financial Powers of Attorney can work together to protect you and your partner.
Most people don't have to worry about federal estate taxes. (If you die in 2024, only estates worth more than $13.61 million will owe federal estate taxes.) State estate taxes, on the other hand, affect more people. However, not all states impose a state estate tax. Find out whether your state has an estate tax.
With federal estate taxes, all assets left to a surviving spouse—including a validly married spouse of the same sex—are exempt from federal estate tax. But if you're not married, the surviving partner won't have this benefit. State estate tax rules vary. If you're worried about estate taxes, you can see a lawyer or tax professional to discuss ways to reduce them.
As part of your estate plan, you and your partner should also consider making final arrangements documents. In this document, you can specify your wishes, in as much detail as you choose, about:
While this document is not legally binding, it can come as great relief to those who must take care of these details after you die. Knowing what you wanted can calm concerns and put to rest any questions about your final wishes. This may be of particular help to your partner if you anticipate that other people in your life may have strong opinions about how to lay you to rest, or if you anticipate friction when your partner tries to assert your wishes.
You can easily create a final arrangements document using WillMaker & Trust. In addition to helping you make a will, simple living trust, healthcare directive, and financial power of attorney, WillMaker walks you through all of the issues listed above to arrive at a final arrangements document with as much or as little detail as you like about your final wishes.
Read more about Estate Planning for Unmarried Partners.
Even if you’re a married LGBTQ couple, you might want to consider whether a few additional estate planning issues apply to you.
While certainly everyone should keep the beneficiary designations on their bank, retirement, and IRA accounts and life insurance policies up-to-date, LGBTQ couples in particular should make a point of checking that their beneficiary designations are current. Why? Many people remove ex-partners as the beneficiaries of their accounts when they get divorced. Divorce, with its legal procedures for unraveling a relationship, acts as a natural point for people to reevaluate their estate plans and beneficiary designations. However, because same-sex couples were not universally able to get married before the Supreme Court decision in 2015, break-ups often did not involve an official divorce. Without this built-in reminder to unwind assets and check beneficiary designations, you might have left an ex-partner named as the beneficiary to a significant asset. So double check your accounts.
Read How to Change a POD Account Beneficiary and Naming a Beneficiary for Your Life Insurance.
If you’re estranged from your family or expect family conflict over the property you leave behind, consider adding a no-contest clause to your will or living trust. A no-contest clause states that if someone (say, a disgruntled relative) challenges the validity of your will or trust in court, and then loses, they won’t inherit anything at all from you. These clauses give potential challengers pause, and may be of interest to some in the LGBTQ community, as well as anyone who anticipates family disputes after death. However, no-contest clauses aren’t enforced in every state. If you’re interested in adding a mechanism like this, consult a local estate planning attorney.
Read more about No-Contest Clauses in Wills and Trusts.
Even if you’re married, one spouse might not be the legal parent of one or more of your children. (See Gay and Lesbian Adoption and Parenting for more on this topic.) With respect to your estate plan, you’ll want to consider not only whether your children will inherit from one or both spouses, but also what will happen to your minor children if either (or both) of you die. If your family situation is complicated, consider looking for a family law or estate planning attorney.
Read more about Leaving an Inheritance for Children.
Learn more about legal issues affecting same-sex couples in the LGBTQ Law section of Nolo.com.
]]>Yes. In a landmark decision in 2015, the United States Supreme Court ruled that same-sex couples have the right to marry anywhere in the United and that all states must recognize same-sex marriages legally performed in other states. (Obergefell v. Hodges, 576 U.S. 644 (2015).)
The Respect for Marriage Act, a federal law passed in 2022, requires states to recognize same-sex and interracial marriages across state lines. The law also guarantees same-sex and interracial couples federal marriage benefits.
No. In two decisions, the U.S. Supreme Court has ruled that people who object to same-sex marriage can't be forced to do business with gay or lesbian couples.
First, in Masterpiece Cakeshop v. Colorado Civil Rights Comm'n., 584 U.S. ___ (2018), a Colorado law said that people and businesses offering services to the public couldn't discriminate based on sexual orientation. A baker—the owner of Masterpiece Cakeshop—refused to bake a wedding cake for a gay couple, because he objected to same-sex marriage for religious reasons. The Court decided that Colorado's law, as applied to the baker, violated the First Amendment free exercise of religion clause. The baker couldn't be forced to bake wedding cakes for same-sex couples.
More recently, in 303 Creative LLC v. Elenis, 600 U.S. ___ (2023), a Colorado website maker objected to making websites for same-sex weddings because, she said, same-sex marriage is contrary to her religious beliefs. She asked the courts for an order preventing Colorado from enforcing its anti-discrimination law against her. The Court agreed that the law was unconstitutional, but for a different reason than in Masterpiece Cakeshop.
Forcing the website maker to create websites for gay or lesbian weddings would compel her to deliver a message—approval of same-sex marriage—that she opposed. Drawing on a long line of decisions prohibiting compelled speech, the Court found that Colorado's law violated the First Amendment free speech clause.
In short, if a business owner objects to doing business with gay or lesbian couples on religious or free speech grounds, the Court says the Constitution protects their right to discriminate. Otherwise, anti-discrimination laws should protect same-sex couples as they do opposite-sex couples.
Not anymore. Now that same-sex marriage is legal in every state, all married couples are treated the same by the IRS. Same-sex couples who are married can potentially benefit from any tax rules where marriage is a factor, including:
Legally married same-sex couples can file taxes in one of two ways—married filing jointly or married filing separately. To find out which is better for you, check out: Should married people file jointly or separately?
On a state level, same-sex married couples can file joint state tax returns in all states, even states that previously banned gay marriage. If you have questions about federal or state tax filings, you should talk to an experienced tax professional or lawyer.
Domestic partners are unmarried couples (of the same or opposite sex) who live together and register their relationship with the government to receive the same legal rights as married couples.
As of 2022, only a handful of states recognize domestic partnerships. A few others recognize civil unions. All states allow for same-sex marriage.
Domestic partner benefits vary, but can include things like:
Learn more about domestic partnerships and whether they are available in your state.
Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) people have adopted children for decades, but they do face some roadblocks.
Now that same-sex marriage is the law of the land, individuals can adopt their same-sex spouses’ biological children through stepparent adoption laws. For example, let’s say a woman named Stephanie gives birth to a child conceived with donor sperm. Stephanie’s wife can apply to adopt Stephanie's biological child through stepparent laws nationwide. If Stephanie and her partner aren’t married, her partner can petition for second-parent adoption in states that allow it.
Some states allow LGBTQ couples to adopt children jointly, making both parents legal parents at the same time. Usually, these adoptions are done through domestic or international adoption agencies or independently (where the adopting parents deal directly with the birth parents or through an intermediary, like an attorney).
While same-sex couples, especially married same-sex couples, have more opportunities than ever to adopt, some private and religious adoption agencies refuse to place children with LGBTQ families. In 2021, the U.S. Supreme Court said that a Catholic foster care agency may ban same-sex couples from fostering and adopting. (Fulton v. The City of Philadelphia, 141 S.Ct. 1868 (2021).)
Learn more about gay and lesbian adoption and parenting.
Just as same-sex couples have the right to marry in every state, they also have the right to divorce in every state. Same-sex couples must follow the same divorce processes as opposite-sex couples in their state, including rules related to:
Learn everything you need to know about same-sex divorce.
The process for ending a domestic partnership varies in the handful of states that recognize domestic partnerships. In some states, domestic partners might simply be able to file a request to terminate the partnership with the Secretary of State. In other states, partners must go through a process similar to divorce proceedings.
Couples with questions about how to end their marriage or domestic partnership—especially ones who are married or registered in more than one place—should talk to a divorce attorney who has experience working with same-sex couples.
Even though the Supreme Court legalized same-sex marriage in 2015, many questions remain for same-sex couples who are unmarried or in civil unions or domestic partnerships. And parenting rights for same-sex couples still vary depending on the couple's relationship status and state laws.
You can also find the latest information about legal issues affecting same-sex couples and their families at Lambda Legal.
For years the U.S. Congress, as well as U.S. Citizenship and Immigration Services (USCIS) insisted that heterosexual marriages were the only ones that counted for immigration purposes. A law called the "Defense of Marriage Act" or DOMA had defined “marriage” as between a man and a woman, with the result that only heterosexual partners could petition for a green card for their foreign-born spouses.
However, as a result of the U.S. Supreme Court's decision in United States v. Windsor, same-sex foreign spouses of U.S. citizens and permanent residents became eligible to apply for green cards. The Court held that DOMA violated the equal protection guarantee of the U.S. Constitution and that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections.
The bottom line is that any same-sex marriage that is legally recognized in the United States or in the country where it took place counts for U.S. immigration purposes.
In order to successfully get a green card, all applicants must make it through USCIS’s multi-step process. To start matters, the U.S. citizen spouse must fill out a petition on USCIS Form I-130.
Just like a same-sex couple, you’ll have to prove that your marriage is legally valid in the place it occurred. After the Supreme Court’s later decision in Obergefell v. Hodges, all states must recognize same-sex marriages performed anywhere within the United States. Thus, if you and your spouse were married within the U.S., meeting the legal-marriage requirement isn’t a problem. The USCIS also recognizes same-sex marriages that took place outside the United States, as long as the marriage is legally recognized in the country in which it occurred.
However, many countries still don’t recognize same-sex marriage. In some of these countries, travel might be difficult for the foreign spouse, making it particularly difficult to enter into a legally recognized marriage. (It’s important to make sure that you don’t try to get around this problem by getting a tourist visa to enter the U.S.—this could be considered visa fraud, and could result in denial of a green card. See the discussion below about fiancé visas.)
In most circumstances, you can prove legal marriage by presenting a copy of your marriage certificate. Note that USCIS usually requires that you have a certificate created by an official governmental agency rather than a church or other nongovernmental entity. If you’re married abroad, see what your options are for getting a certificate that’s officially recognized, registered, or issued by a governmental agency.
Another requirement for a marriage-based green card is that the marriage is “bona fide”—meaning you didn’t get married simply to provide the non-citizen with a pathway to citizenship. USCIS typically requires all couples to provide copies of documents such as photos of the wedding, letters, bills or statements showing you live together, and children’s birth certificates.
If your foreign-born fiancé is out of the country, but you want to get married in the United States, your best option is probably to get a K-1 fiancé visa. A K-1 visa allows your fiancé to spend 90 days in the United States. While your fiancé is in the country, you can get married, and then apply for “adjustment of status,” in other words, U.S. lawful conditional residence.
The legal requirements for getting a K-1 visa for same-sex couples are the same as those for different-sex couples. Perhaps most importantly, you must intend to get married. The U.S. government will require more than just a general goal of tying the knot—you’ll have to provide evidence of plans, such as reservations for a venue or an appointment to appear before a judge. It’s a good idea to make sure your plans are flexible, though, because there’s no guarantee of how long it will take to get approved for the fiancé visa.
You’ll also have to demonstrate that you and your intended spouse have met in person within the two years immediately before filing the I-129F petition for the fiancé visa. Finally, you must legally be able to marry. Being a same-sex couple is no longer a barrier to getting a legal marriage in the U.S., but you’ll want to make sure that you meet all the other requirements for getting a marriage license.
For more information, check out Nolo’s Fiancé & Marriage Visas: A Couple’s Guide to U.S. Immigration. The USCIS also offers an online policy manual that includes a section on immigration for spouses of U.S. citizens. Finally, Nolo has an online section addressing marriage-based green cards, which goes into greater detail on many of the topics addressed in this article.
]]>So, if you financially support your partner and meet all other criteria, you might be able to file a tax return as a single person and claim your partner as a dependent.
To be able to do this legally, you must meet the following criteria.
The supporting partner must provide at least 50% of the other partner's total support for the year. Support includes food, shelter, clothing, medical and dental care, education, entertainment, and just about any expense you can think of.
You generally can't claim a person as a dependent unless that person is a U.S. citizen, a U.S. resident alien, a U.S. national, or a resident of Canada or Mexico.
The supported person's gross income can't exceed a certain amount for the year. (See IRS Publication 501, Dependents, Standard Deduction, and Filing Information to find out the current amount.) Nontaxable money, such as gifts, welfare benefits, and nontaxable Social Security benefits, don't count toward gross income.
Under IRS regulations, a person who lived in your home for the entire year can be considered a dependent as long as the relationship doesn't violate local law. When this rule was written, sodomy, fornication, and cohabitation were illegal in many states. Even though most states have repealed these kinds of laws, a few are still in place. If you live in one of those states, you're technically not allowed to claim the tax break. Though, consider going ahead and claiming your partner as a dependent anyway. Various court decisions have made those laws questionable at best, and the worst that can happen is that the IRS won't allow you to claim your partner as a dependent, and your tax bill will be recomputed.
If the supported person is married and files a joint tax return with a legal spouse, the supporting partner in this relationship can't claim the supported person as a dependent. There's one exception: If the married couple didn't earn enough to have to file a tax return and did so only to get a refund, the supporting partner can claim the dependent.
Review IRS Publication 501, Dependents, Standard Deduction, and Filing Information to learn more about dependents and taxes. You can get a copy of this publication by contacting the IRS at 800-829-1040 or going to the IRS website at www.irs.gov.
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