May 25, 2016
As a result of the Supreme Court's historic Obergefell decision on June 26, 2015, same-sex marriage is now a reality all across the United States. Same-sex couples can get married--and have their marriages recognized--anywhere in the U.S..
In June of 2013, prior to Obergefell, the Supreme Court issued another major marriage equality ruling in U.S. v. Windsor, which held that same-sex couples must be considered legally married for federal purposes and qualify for the same federal benefits opposite sex couples receive, including immigration status, Social Security benefits, and laws exempting married couples from inheritance taxes and gift taxes. To learn more about the Windsor case, see Same Sex Married Couples Will Soon Receive Federal Benefits.
And 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:
Today, California, D.C., Nevada, New Jersey, Oregon, and Washington state continue to allow domestic partnerships. New Jersey allows domestic partnerships for partners that are both under 62, but this system offers limited rights. If one partner is over 62, the couple will have marriage equivalent rights. Washington state offers domestic partnerships, but only if one partner is over 62. Colorado, Hawaii, and Illinois continue to allow civil unions, which offer almost all of the benefits of marriage.
One of the most important things to remember about civil unions and domestic partnerships is that the federal government does not recognize these relationships. Unmarried couples in domestic partnerships or civil unions will not qualify for any federal benefits, such as marital tax benefits or Social Security benefits. For some couples, these benefits may be a good reason to tie the knot, but for others, marriage may actually do more financial harm than good. If you're considering getting married, it's important to carefully consider the pros and cons.
Now that same-sex married couples qualify for all the same rights and responsibilities that opposite-sex married couples receive, there are many factors to consider as you think about how you want to structure your relationship, including the following:
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're 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 or divorce 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're 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.
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.
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.
To learn more about issues facing same-sex couples, consider these books by Nolo: