Legal Rights and Benefits for Gay Couples

Authored by Wendy Witt, Esq.

Many state governments as well as the federal government do not recognize same sex marriages or registered domestic partnerships. This means that those in a same sex marriage or anyone in an unmarried partnership is not afforded the same level of protection and rights as a heterosexual married couple.

The Defense of Marriage Act (DOMA) Denies Benefits to Same-Sex Couples

There are 1,138 benefits, rights and protections provided to married couples based on federal law.

However, federal legislation, called the Defense of Marriage Act, only recognizes the marriages of heterosexual couples - even if a state's law recognizes gay marriage.

For example, the state of Connecticut or New York may recognize your marriage, but the feds don't.

This means that homosexual couples and both homosexual and heterosexual partnerships are not recognized on a federal level and, thus, don't receive the benefit of marriage including:

  • Unlimited Marital Deduction
  • Social Security Benefits
  • Divorce Tax Benefits
  • Family and Medical Leave Act
  • Immigration Benefits
  • Employee Benefits for Federal Workers
  • COBRA Benefits
  • Real Estate Tax Exemption
  • Other Tax Benefits

State Laws Deny Benefits to Gay Couples

As of this writing, most state laws also fail to recognize benefits for those in a homosexual marriage as well as those in both homosexual and heterosexual partnerships.

You can be recognized as married in one state, but not the next. For example, you are married under state law in New York, where you live, but if you visit your parents in Pennsylvania, you're not recognized as being married.

This means that couples may not be entitled to:

  • Hospital Visitation
  • Medical Decision Making
  • Inheritance Rights
  • Spousal Support
  • State Tax Benefits such as Community Property
  • Adopt

You and Your Loved One May Need an Extra Layer of Legal Protection

Both a family law attorney and estate planning attorney are essential to establish legal rights because the law doesn't provide them. Unfortunately, legal planning can't get you all the rights, benefits, and protections afforded to heterosexual married couples, but it can help.

  • Prenuptial and preregistration agreements help you and your spouse/partner to decide whether you want to live under the default law of your state or forge your own agreement as to how your financial relationship will handled during your relationship and if you should choose to move on separately.
  • You'll need to explore which estate planning documents you need to make sure you stay in control of your own health care and finances - and - so you wishes are carried out.
    • Will your spouse/partner be authorized to make medical decisions on your behalf if you cannot?
    • Will your spouse/partner inherit from you?
    • Are trusts or other special planning needed to minimize or avoid death related taxes or to protect your loved ones?
    • Do you need additional disability benefits or life insurance because you're not entitled to federal benefits?

Laws are Changing, Keep Your Plan Up-to-Date

Gay marriage and partnerships are a dynamic area of law. Almost every day, there are new headlines. While estate planning attorneys typically tell their clients to have their plans professionally reviewed for any necessary updates every three to five years, if you are in a gay marriage or a registered partnership, you'll be better served if you check in with your estate planning attorney annually.

Potential Break Through in Gay Marriage Law

The United States Supreme Court will hear two significant gay rights cases March 26th and 27th of 2013. It is anticipated that the Court will release its decisions sometime in the end of June 2013.

These potentially landmark cases may decide:

  • Whether California's gay marriage ban violates the U.S. Constitution (Hollingsworth v. Perry, U.S. Supreme Court, No. 12-144).
  • Whether laws prohibiting the recognition of gay marriage discriminate against gay couples (U.S. v. Windsor, U.S. Supreme Court, No. 12-307).

Why You Need More Help Than the Couple Down the Street

When you are in a gay marriage or any kind of partnership, you are not afforded the same rights as heterosexual married couples; therefore, you need to take action and execute legal documentation to be afforded rights, benefits, and protections other couples take for granted.

Unlike heterosexual spouses, you cannot just sit back and enjoy the benefits of marriage (such as inheritance rights, tax benefits, insurance benefits, and hospital visitation) without overt action.

How to Find Family Law Attorneys and Estate Planning Attorneys

There are many professionals who welcome same sex couples as well as other committed adults who wish to be domestic partners. You can find both family law attorneys and estate planning attorneys on www.attorneys.org. In addition, a friend or loved one may be able to recommend an attorney they trust and have had a good experience with. Lastly, many bar associations have lists of estate planning attorneys and family law attorneys.

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