Marriage Equality Remains an Aspiration

New York state has now made same-sex marriage legal (DRL ' 10-A.), but the title of the new law, the Marriage Equality Act, remains aspirational. Non-recognition statutes and other factors create issues that family law practitioners must be aware of in counseling same-sex couples planning for their future ' or those seeking to end their marriages. This article addresses many of those issues.

The Larger Landscape

New York courts and executive branch officials repeatedly gave effect to same-sex marriages performed in jurisdictions where they were legal before the legislature sanctioned the performance of such marriages in New York. (See, e.g., Godfrey v. Spano, 13 NY3d 358 (2009) (upholding legality of directive by Westchester County Executive and State Civil Service Commissioner ordering recognition of out-of-state same-sex marriages legal where performed); In re Estate of Fanftle, 81 AD3d 566 (1st Dept. 2011) (affirming decision of Surrogate's Court holding that same-sex spouse of decedent pursuant to Canadian marriage was entitled to rights of spouse with respect to administration of the deceased spouse's estate); Martinez v. County of Monroe, 50 AD3d 189 (4th Dept. 2008) (ordering that a community college grant spousal health-care benefits to employee's same-sex spouse based on Canadian marriage); C.M. v. C.C., 21 Misc.3d 926 (Sup. Ct. N.Y. Co. 2008) (Supreme Court has jurisdiction to adjudicate divorce between same-sex spouses married in Massachusetts). See also 2004 Ops. Atty. Gen. No. 2004-1, at 16 (3/3/04), concluding that, although the Domestic Relations Law did not authorize same-sex marriages in New York, “New York law presumptively requires that parties to such unions must be treated as spouses for purposes of New York law.”) However, the federal government and most states have enacted legislation denying recognition to same-sex marriages, greatly complicating the legal landscape for same-sex married couples. (As an example of the state-law rights and duties linked to legal marriage, see “1324 Reasons for Marriage Equality in New York State,” a compendium of the New York statutes conferring legal rights and imposing legal duties by virtue of marriage, compiled and published jointly by the Empire State Pride Agenda Foundation and the New York City Bar.)

DOMA

The federal Defense of Marriage Act (DOMA), PL 104-199, Sept. 21, 1996, 110 Stat 2419, obstructs marriage equality for same-sex partners in two ways. First, it creates an exception to the statutory implementation of the Constitution's Full Faith and Credit Clause, by providing that “[n]o State ' shall be required to give effect to any public act, record or judicial proceeding of any other State ' respecting a relationship between persons of the same sex that is treated as a marriage under the laws of any other such State ' or a right or claim arising from such relationship.” 28 U.S.C.A. ' 1738C.

Second, it bars recognition of same-sex marriages by the federal government, specifying that “[i]n determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife.” 1 U.S.C.A. ' 7.

The latter provision is widely understood as barring the parties to single-sex marriages from all of the benefits provided to married people under federal law. This includes widows and widowers, who are also deprived of their valuable rights.

The former provision invited states to refuse recognition to same-sex marriages performed in jurisdictions that allowed them. There were no such jurisdictions when DOMA was adopted, but same-sex marriages are now legally performed in Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia, as well as in 10 other countries, including Canada. (In Mexico, same-sex marriage is legal in some jurisdictions and not in others. At least 20 additional countries perform civil unions.)

Most states have accepted that invitation, enacting statutes or constitutional provisions that not only bar the performance of same-sex marriages within their boundaries, but deny recognition to out-of-state same-sex marriages, a departure from the normal rule under which states typically give full legal effect to marriages that were legal in the state where they were performed, with only very limited exceptions. (Other countries will recognize but will not perform same-sex marriages, such as Israel, Aruba and Curacao.) The effects of those “state DOMAs” vary with their wording and the manner in which they have been or will be interpreted by the courts.

Enormous Uncertainties

In our highly mobile society, however, they create enormous uncertainty for same-sex couples, who cannot know to what states or countries their careers, lifestyle preferences and/or family obligations may cause them to move, or where they will find themselves when fate lands one spouse in the hospital.

The non-recognition of same-sex marriages by the federal government and individual states is being challenged in courts around the country, and Attorney General Eric Holder recently announced that the Justice Department will no longer defend in court the constitutionality of DOMA's bar on federal recognition of same-sex marriages that are legal in the jurisdictions where they are performed, because the President has concluded that that bar is unconstitutional. Nonetheless, both DOMA and the state DOMAs remain in effect, and the outcome of the constitutional challenges to them is uncertain.

Financial Rights

DOMA deprives same-sex spouses of numerous rights with respect to federal income taxes, such as the right to file joint federal tax returns, the right of one spouse to claim the other, and possibly their children, as dependents, and, in the event of divorce, the right to deduct spousal support payments from one's income and the right to make transfers of property between spouses to effect the agreed-upon or court-ordered distribution of property without tax consequences. The same will be true with respect to state taxes for same-sex couples residing in states that have passed their own non-recognition statutes or constitutional provisions (non-recognition states).

As a result of DOMA and the state DOMAs, the health insurance plans of parties to same-sex marriages who work for the federal government and, in many non-recognition states, for state and/or local government as well, will not cover the non-employee spouse. The non-employee spouse will likewise be deprived of other spousal benefits, such as the right to receive survivor pension benefits. See 29 U.S.C.A. ' 1055(a). Some non-recognition states, however, do provide domestic-partner benefits, or permit political subdivisions to do so.

Whether local governments in non-recognition states are constrained from providing health insurance and other benefits to a same-sex spouse will depend on the wording of the non-recognition statute or constitutional provision. In Leskovar v. Nickels, 140 Wash. App. 770 (Ct. App. Div. 1 2007), the court upheld an executive order issued by the mayor of Seattle directing city agencies to recognize the same-sex marriages of city employees “for purposes of granting employee benefits and other benefits ordinarily received in the course of employment,” finding that the order was not violative of Washington's DOMA, which provides, inter alia, that “[a] marriage between two persons that is recognized as valid in another jurisdiction is valid in this state only if the marriage is not [between 'persons other than a male and a female'].” RCW 26.04.020(3), 26.04.030(1).

The court in Leskovar reasoned that there was “no direct conflict” between the foregoing language and a state statute that authorizes cities, counties and other political subdivisions to provide health benefits to their “employees and their dependents,” (RCW 41.04.180), leaving it to the local governments to define “dependents.” Leskovar, 140 Wash. App. at 779. The court contrasted the language of Washington's DOMA with that of Michigan, which specifies that “the union of one man and one woman shall be the only agreement recognized as a marriage or similar union for any purpose.” M.C.L.A. Const. Art. 1, ' 25.

In National Pride at Work Inc. v. Governor of Michigan, 274 Mich. App. 147 (Ct. App. 2007), the court found that that language prohibited public employers in the state from granting health benefits to the domestic partners of same-sex employees. Where one spouse is covered by health insurance provided by the other spouse's employer, whether governmental or private, the value of the coverage for the non-employee spouse will be treated as taxable income by the federal government and non-recognition states, since same-sex spouses will not be regarded as family members of the employee, for whom such benefits are tax-free to the employee recipient. See Massachusetts v. U.S. Dept. of Health and Human Services, 698 F. Supp. 2d 234, 243 (D. Mass 2010).

In the event of the death of one spouse in a single-sex marriage, non-recognition can severely affect the rights of the surviving spouse. If one spouse dies without a will while the couple is residing in a non-recognition state, the law of intestacy, which typically provides that the surviving spouse inherits, will not apply because, in the eyes of the state, the surviving spouse will be a legal stranger.

Likewise, while state laws typically protect a spouse from disinheritance by providing that a surviving spouse shall be entitled, at a minimum, to an “elective share” of a deceased spouse's estate, that requirement will not apply in a non-recognition state. And if a deceased spouse has sufficient wealth to subject his or her estate to inheritance taxes, a surviving spouse inheriting pursuant to a will will be subject to federal inheritance taxes (and, in a non-recognition state, state inheritance taxes, if any) on the value of assets inherited from the deceased spouse, whereas inheritance by a spouse is normally not a taxable event. (The constitutionality of that application of DOMA is presently being challenged in the Southern District of New York in Windsor v. United States, 10-cv-8435.) Wherever the parties were residing prior to the death of the deceased spouse, DOMA will bar the surviving spouse from receiving Social Security survivors' benefits. 42 U.S.C.A. ” 402, 416(a)-(c), (f)-(g).

Moreover, in non-recognition states, same-sex couples will not be able to own real property as “tenants by the entirety.” This is the form of ownership that provides a spouse with the maximum protection in the event of the death of a spouse, and also prevents one spouse from selling or transferring to another any partial interest in a jointly owned property.

Next month's issue will discuss more aspects of marriage and divorce left uncertain by the non-recognition of same-sex marriage in many jurisdictions.

Harriet Newman Cohen and Bonnie E. Rabin are partners, and Tim James is an associate, at Cohen Rabin Stine Schumann. Ms. Rabin represented the petitioner in Debra H. v. Janice R., a case discussed herein. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

New York state has now made same-sex marriage legal (DRL ' 10-A.), but the title of the new law, the Marriage Equality Act, remains aspirational. Non-recognition statutes and other factors create issues that family law practitioners must be aware of in counseling same-sex couples planning for their future ' or those seeking to end their marriages. This article addresses many of those issues.

The Larger Landscape

New York courts and executive branch officials repeatedly gave effect to same-sex marriages performed in jurisdictions where they were legal before the legislature sanctioned the performance of such marriages in New York. ( See, e.g., Godfrey v. Spano , 13 NY3d 358 (2009) (upholding legality of directive by Westchester County Executive and State Civil Service Commissioner ordering recognition of out-of-state same-sex marriages legal where performed); In re Estate of Fanftle, 81 AD3d 566 (1st Dept. 2011) (affirming decision of Surrogate's Court holding that same-sex spouse of decedent pursuant to Canadian marriage was entitled to rights of spouse with respect to administration of the deceased spouse's estate); Martinez v. County of Monroe , 50 AD3d 189 (4th Dept. 2008) (ordering that a community college grant spousal health-care benefits to employee's same-sex spouse based on Canadian marriage); C.M. v. C.C. , 21 Misc.3d 926 (Sup. Ct. N.Y. Co. 2008) (Supreme Court has jurisdiction to adjudicate divorce between same-sex spouses married in Massachusetts). See also 2004 Ops. Atty. Gen. No. 2004-1, at 16 (3/3/04), concluding that, although the Domestic Relations Law did not authorize same-sex marriages in New York, “New York law presumptively requires that parties to such unions must be treated as spouses for purposes of New York law.”) However, the federal government and most states have enacted legislation denying recognition to same-sex marriages, greatly complicating the legal landscape for same-sex married couples. (As an example of the state-law rights and duties linked to legal marriage, see “1324 Reasons for Marriage Equality in New York State,” a compendium of the New York statutes conferring legal rights and imposing legal duties by virtue of marriage, compiled and published jointly by the Empire State Pride Agenda Foundation and the New York City Bar.)

DOMA

The federal Defense of Marriage Act (DOMA), PL 104-199, Sept. 21, 1996, 110 Stat 2419, obstructs marriage equality for same-sex partners in two ways. First, it creates an exception to the statutory implementation of the Constitution's Full Faith and Credit Clause, by providing that “[n]o State ' shall be required to give effect to any public act, record or judicial proceeding of any other State ' respecting a relationship between persons of the same sex that is treated as a marriage under the laws of any other such State ' or a right or claim arising from such relationship.” 28 U.S.C.A. ' 1738C.

Second, it bars recognition of same-sex marriages by the federal government, specifying that “[i]n determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife.” 1 U.S.C.A. ' 7.

The latter provision is widely understood as barring the parties to single-sex marriages from all of the benefits provided to married people under federal law. This includes widows and widowers, who are also deprived of their valuable rights.

The former provision invited states to refuse recognition to same-sex marriages performed in jurisdictions that allowed them. There were no such jurisdictions when DOMA was adopted, but same-sex marriages are now legally performed in Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia, as well as in 10 other countries, including Canada. (In Mexico, same-sex marriage is legal in some jurisdictions and not in others. At least 20 additional countries perform civil unions.)

Most states have accepted that invitation, enacting statutes or constitutional provisions that not only bar the performance of same-sex marriages within their boundaries, but deny recognition to out-of-state same-sex marriages, a departure from the normal rule under which states typically give full legal effect to marriages that were legal in the state where they were performed, with only very limited exceptions. (Other countries will recognize but will not perform same-sex marriages, such as Israel, Aruba and Curacao.) The effects of those “state DOMAs” vary with their wording and the manner in which they have been or will be interpreted by the courts.

Enormous Uncertainties

In our highly mobile society, however, they create enormous uncertainty for same-sex couples, who cannot know to what states or countries their careers, lifestyle preferences and/or family obligations may cause them to move, or where they will find themselves when fate lands one spouse in the hospital.

The non-recognition of same-sex marriages by the federal government and individual states is being challenged in courts around the country, and Attorney General Eric Holder recently announced that the Justice Department will no longer defend in court the constitutionality of DOMA's bar on federal recognition of same-sex marriages that are legal in the jurisdictions where they are performed, because the President has concluded that that bar is unconstitutional. Nonetheless, both DOMA and the state DOMAs remain in effect, and the outcome of the constitutional challenges to them is uncertain.

Financial Rights

DOMA deprives same-sex spouses of numerous rights with respect to federal income taxes, such as the right to file joint federal tax returns, the right of one spouse to claim the other, and possibly their children, as dependents, and, in the event of divorce, the right to deduct spousal support payments from one's income and the right to make transfers of property between spouses to effect the agreed-upon or court-ordered distribution of property without tax consequences. The same will be true with respect to state taxes for same-sex couples residing in states that have passed their own non-recognition statutes or constitutional provisions (non-recognition states).

As a result of DOMA and the state DOMAs, the health insurance plans of parties to same-sex marriages who work for the federal government and, in many non-recognition states, for state and/or local government as well, will not cover the non-employee spouse. The non-employee spouse will likewise be deprived of other spousal benefits, such as the right to receive survivor pension benefits. See 29 U.S.C.A. ' 1055(a). Some non-recognition states, however, do provide domestic-partner benefits, or permit political subdivisions to do so.

Whether local governments in non-recognition states are constrained from providing health insurance and other benefits to a same-sex spouse will depend on the wording of the non-recognition statute or constitutional provision. In Leskovar v. Nickels , 140 Wash. App. 770 (Ct. App. Div. 1 2007), the court upheld an executive order issued by the mayor of Seattle directing city agencies to recognize the same-sex marriages of city employees “for purposes of granting employee benefits and other benefits ordinarily received in the course of employment,” finding that the order was not violative of Washington's DOMA, which provides, inter alia, that “[a] marriage between two persons that is recognized as valid in another jurisdiction is valid in this state only if the marriage is not [between 'persons other than a male and a female'].” RCW 26.04.020(3), 26.04.030(1).

The court in Leskovar reasoned that there was “no direct conflict” between the foregoing language and a state statute that authorizes cities, counties and other political subdivisions to provide health benefits to their “employees and their dependents,” (RCW 41.04.180), leaving it to the local governments to define “dependents.” Leskovar, 140 Wash. App. at 779. The court contrasted the language of Washington's DOMA with that of Michigan, which specifies that “the union of one man and one woman shall be the only agreement recognized as a marriage or similar union for any purpose.” M.C.L.A. Const. Art. 1, ' 25.

In National Pride at Work Inc. v. Governor of Michigan , 274 Mich. App. 147 (Ct. App. 2007), the court found that that language prohibited public employers in the state from granting health benefits to the domestic partners of same-sex employees. Where one spouse is covered by health insurance provided by the other spouse's employer, whether governmental or private, the value of the coverage for the non-employee spouse will be treated as taxable income by the federal government and non-recognition states, since same-sex spouses will not be regarded as family members of the employee, for whom such benefits are tax-free to the employee recipient. See Massachusetts v. U.S. Dept. of Health and Human Services , 698 F. Supp. 2d 234, 243 (D. Mass 2010).

In the event of the death of one spouse in a single-sex marriage, non-recognition can severely affect the rights of the surviving spouse. If one spouse dies without a will while the couple is residing in a non-recognition state, the law of intestacy, which typically provides that the surviving spouse inherits, will not apply because, in the eyes of the state, the surviving spouse will be a legal stranger.

Likewise, while state laws typically protect a spouse from disinheritance by providing that a surviving spouse shall be entitled, at a minimum, to an “elective share” of a deceased spouse's estate, that requirement will not apply in a non-recognition state. And if a deceased spouse has sufficient wealth to subject his or her estate to inheritance taxes, a surviving spouse inheriting pursuant to a will will be subject to federal inheritance taxes (and, in a non-recognition state, state inheritance taxes, if any) on the value of assets inherited from the deceased spouse, whereas inheritance by a spouse is normally not a taxable event. (The constitutionality of that application of DOMA is presently being challenged in the Southern District of New York in Windsor v. United States, 10-cv-8435.) Wherever the parties were residing prior to the death of the deceased spouse, DOMA will bar the surviving spouse from receiving Social Security survivors' benefits. 42 U.S.C.A. ” 402, 416(a)-(c), (f)-(g).

Moreover, in non-recognition states, same-sex couples will not be able to own real property as “tenants by the entirety.” This is the form of ownership that provides a spouse with the maximum protection in the event of the death of a spouse, and also prevents one spouse from selling or transferring to another any partial interest in a jointly owned property.

Next month's issue will discuss more aspects of marriage and divorce left uncertain by the non-recognition of same-sex marriage in many jurisdictions.

Harriet Newman Cohen and Bonnie E. Rabin are partners, and Tim James is an associate, at Cohen Rabin Stine Schumann. Ms. Rabin represented the petitioner in Debra H. v. Janice R., a case discussed herein. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.