EmilyDoskow-199x300On June 26, 2013, the United States Supreme Court issued its opinion in Windsor v. United States, declaring unconstitutional Section 3 of the Federal Defense of Marriage Act (DOMA) , which provided that the federal government would recognize only marriages between one man and one woman. With the demise of Section 3, the United States government now officially recognizes the tens of thousands of legal same-sex marriages celebrated in the fourteen jurisdictions where they are allowed, as well as legal marriages performed for same-sex couples in other countries.

This is, of course, great news for same-sex couples who are already married or who wish to marry, as well as for anyone who cares about equality. But does it mean that the well-documented complications that have faced married same-sex couples since Massachusetts began marrying same-sex couples in 2004 are over? Hardly. The consequences of the SCOTUS decision resound in nearly every aspect of the lives of married same-sex couples. Here’s a quick Q&A covering some of the most common questions about the Windsor decision.

After Windsor, will same-sex married couples be treated the same as opposite-sex married couples in every way?
No. A marriage performed in any of the 14 marriage equality jurisdictions will now be recognized by all of those states, and also by the federal government—but “recognized” is a complicated word, and so is “government” in this context.

Each federal agency, such as the Internal Revenue Service and the Social Security Administration, determines for itself whether to base its definition of whether spouses are married on the place of celebration or the place of domicile—in other words, where the parties married, or where they actually live.

For couples who live in California and other marriage-equality states, this isn’t a big issue, because both the place of celebration and the place of domicile recognize the relationship. But for couples who leave a non-recognition state to marry in one of the equality states and then return home, or for married couples who move to a non-recognition jurisdiction, the distinction can be critical. For example, the Social Security Administration maintains a domicile rule. This means, for example, that a California spouse whose qualified partner dies will receive Social Security spousal death benefits, while the spouse of a qualified partner living in Florida at the time of her death will not.

What does the Windsor decision mean for married couples in California? And where does the Prop. 8 decision fit in?
For married same-sex couples in California, the news is essentially all good. To name just a few critical benefits, same-sex spouses here can now:

  • file joint federal income tax returns
  • transfer money and property between them with no tax consequences
  • stop being taxed on a spouse’s health insurance benefits (and get a refund for some prior tax payments)
  • receive a step-up in basis on real property upon the death of the first spouse to die
  • sponsor a spouse for a green card
  • take advantage of COBRA coverage when a spouse’s insurance coverage ends, and
  • qualify for Social Security spousal benefits and death benefits.

And, as noted above, all federal marriage-based benefits will be available for couples living in California, because the place of domicile and place of celebration are the same.

The decision in Hollingsworth v. Perry was issued the same day as Windsor. In it, the Supreme Court ruled that the proponents of California’s Proposition 8 did not have standing to pursue an appeal of Judge Vaughan Walker’s decision overturning Prop. 8. After a bit of wrangling in the days after the SCOTUS opinion was issued, marriage equality returned to California for good on June 30, 2013.

Does the Windsor decision change how same-sex partners get divorced?
Yes and no. A dissolution of marriage remains the same, procedurally, for same-sex and opposite-sex couples. But the tax issues in divorce are vastly different for married same-sex couples in the post-Windsor era. Spousal support payments are now deductible to the payor in a same-sex marriage, and property transfers incident to divorce are tax-neutral. And a non-employee spouse can now take advantage of 36 months of COBRA coverage after the divorce becomes final.

What about California registered domestic partners?
There’s bad news and good news for California registered domestic partners (RDPs). The bad: Domestic partner registration, while the equivalent of marriage from the perspective of the State of California, is not considered a legal marriage for federal purposes. DOMA’s demise does not change anything for RDPs, and domestic partners still do not qualify for any of the federal benefits now available to same-sex married spouses. The good news is that there’s nothing to prevent RDPs from marrying their domestic partner. Their domestic partner registration date will be considered the date of marriage for purposes of accrual of community assets and debts.

Registered domestic partners who are in the process of ending a relationship are in a particular bind, because their property transfers and spousal support payments are not subject to the same favorable tax treatment as those of married spouses. For some couples, it may be worth considering entering into a legal marriage before filing for divorce, in order to gain the tax and insurance advantages that come with federally recognized marriage.

If a same-sex married couple leaves California, will their relationship still be recognized?
In addition to California, there are 13 other jurisdictions in which same-sex couples have the freedom to marry: Connecticut, Delaware, Iowa, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Vermont, Washington D.C., Washington State, and Rhode Island. A married couple who moves from California to any of those places will be treated as married by the new home state as well as the United States government. In addition, at least one state that doesn’t have marriage equality itself—Oregon—recognizes legal marriages performed in states that do, and some other states, like New Mexico, have given strong indications that courts would find same-sex marriages valid there. And the list of marriage-equality states seems to be increasing almost weekly, with Hawaii considered the most likely addition in the coming months.

A same-sex couple married in California and living in a non-recognition state can take advantage of California Family Law Section 2320, which provides that California courts have jurisdiction over the dissolution of a same-sex marriage entered into in California even if neither spouse lives in California at the time of filing, as long as both parties live in states that won’t dissolve the marriage. (There’s a rebuttable presumption that if the state does not recognize the marriage, it will not dissolve it.) This long-arm statute prevents couples from becoming “wedlocked” in the new state–an unhappy situation that many couples find themselves in after marrying in states without similar laws.

What else is there to know about same-sex marriage in the post-Windsor era?
This article barely scratches the surface of the areas affected by the Windsor decision. Lawyers practicing in the areas of bankruptcy, estate planning and elder care, employment, immigration, and nearly every other area of law will experience the ripple effect of federal marriage equality. For comprehensive information on the consequences of the DOMA decision, a good resource is the LGBT Organizations Fact Sheet Series: After DOMA, available on the website of the National Center for Lesbian Rights at www.nclrights.org.

Emily Doskow is a family law attorney and mediator in Oakland, working with same-sex and opposite-sex couples on family formation matters and mediated, collaborative, and uncontested dissolutions. This article was originally printed in the ACBA’s annual magazine, A Year in Review.

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