Same-Sex Married Couples and Bankruptcy: Can You File a Joint Petition?

All married couples, whether same-sex or not, may file joint bankruptcy petitions.

If you are legally married to your same-sex partner, can you file a joint bankruptcy petition? Until 2013, the answer was no in most jurisdictions. But that changed on June 26, 2013 when the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) in United States v. Windsor. 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. However, the protections of Windsor left out the many same-sex couples that could not legally get married because their states did not allow it.

Just two years later, on June 26, 2015, in Obergefell v. Hodges, the U.S. Supreme Court took the Windsor ruling one giant step further, holding that same-sex couples—no matter where in the country they are—have an equal right to marry. What does Obergefell mean in the bankruptcy context? Now, all couples will have the opportunity to marry, which means some same-sex couples that previously couldn't file a joint bankruptcy petition because they couldn't get married, may now get married and, if needed, 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 -- A Bit of History

Although the bankruptcy code never defines a married couple as two spouses of different genders, until 2013, 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 meant that the U.S. Trustee for the different bankruptcy jurisdictions would not oppose such petitions. In practice, however, that was not always the case.

Once the U.S. Supreme Court declared DOMA unconstitutional, however, the path was cleared for same sex married couples to file joint bankruptcy petitions.

Same-Sex Couples That Are Not Legally Married

Just like a heterosexual couple that is not married, if you are part of a same-sex couple but have not gotten married, you cannot file a joint petition.

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