NOTE TO READERS: This article addresses the legal situation before the Supreme Court's June, 2015 decision in Obergefell v. Hodges, which made same-sex marriage legal in all 50 states.
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.
On June 26, 2013, the U.S. Supreme Court issued its decision in United States v. Windsor and struck down the section of DOMA (federal Defense of Marriage Act) that defined marriage as a union between a man and a woman.
The Windsor case involved Edith Windsor and Thea Spyer, who married in Canada in 2007, after being in a relationship for 40 years. When Spyer died in 2009, Windsor was forced to pay $363,053 in taxes on Spyer's estate, which she would not have had to pay if she'd been Spyer's husband. She argued that DOMA, which prevented her from being considered Spyer's spouse for federal purposes, cost her $363,053.
In a 5-4 decision, with the majority opinion written by Justice Anthony Kennedy, the Supreme Court found that the section of DOMA defining marriage as between a man and a woman violates the Equal Protection Clause and is therefore unconstitutional.
Under the Supreme Court's decision, same-sex married couples living in one of the 16 U.S. jurisdictions that recognize same-sex marriage would qualify for federal benefits previously limited to opposite-sex married couples. However, the Court did not address Section 2 of DOMA, which allows states to ignore valid same-sex marriages entered into in other states, or whether Section 2 would impact federal recognition. For example, the Court did not address whether the IRS (or other federal agencies) would recognize the marriages of same-sex married couples living in non-recognition states.
These issues are becoming clearer as time goes on. Right now, we now know that some federal agencies, such as the Social Security Administration, will continue to look to the place of residence (where a couple lives) to determine whether married couples qualify for benefits. As a result, same-sex married spouses living in non-recognition states will not be eligible for Social Security benefits based on their spouse's work record.
But other federal agencies, such as the U.S. Citizenship and Immigration Services (USCIS) will look to the place of celebration (where the marriage was performed) to determine whether same-sex married couples are eligible for benefits.
In August 2013, the U.S. Department of Treasury 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:
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). But the decision does not apply to same-sex couples in domestic partnerships or civil unions.
As of September 2013, California, Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington have all legalized same-sex marriage. These states will also recognize same-sex marriages made in other states. As long as you were legally married in a state that allows same-sex marriage, these states will treat you like any other married couple. You can file a joint state tax return (and now a joint federal 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.
36 states currently have "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."
All 14 of the same-sex marriage jurisdictions no longer have DOMA's or any other laws on their books that ban same-sex marriage. In additon to these 14 jurisdictions, New Mexico is the lone state that does not have a defense against marriage statute banning gay marriage. In the last few months, a few New Mexico officials throughout the state have issued marriage licenses to same-sex couples. However, this has not set state-wide policy - the same-sex marriage battle is just beginning in New Mexico. Since same-sex marriage is not yet recognized across the state, it remains unclear whether your marriage will be recognized in New Mexico.
Wyoming does restrict marriage to a union between a man and a woman, but in one 2011 case, Christensen v. Christensen, the Wyoming Supreme Court ruled that Wyoming trial courts have the ability to hear divorce proceedings terminating same-sex marriages created in other jurisdictions. It remains unclear whether either New Mexico or Wymoning will recognize same-sex marriages for other purposes in the future.
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.
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, D.C. 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.
Between 2011-2013, we saw several more states join the same-sex marriage ranks: New York, Maine, Maryland, Washington State, Rhode Island, Delaware, Minnesota, and California. Also in 2013, England and Wales enacted laws making same-sex marriage legal.
To keep up-to-date on what states are doing in the same-sex marriage arena, visit the Human Rights Campaign Website at www.hrc.org.
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).