Published: June 26, 2013
Gay couples have long had second-tier status when it came to their finances — many things were more complicated, like filing tax returns, and often more costly, like health insurance.
Supreme Court Bolsters Gay Marriage With Two Major Rulings (June 27, 2013)
News Analysis: Court Follows Nation’s Lead (June 27, 2013)
As Rulings Are Announced, Cheers and Tears Among Waiting Crowd (June 27, 2013)
Seeing a Step Toward Equality, or a Spark to Fight Gay Marriage (June 27, 2013)
Bucks Blog: How Supreme Court Decision Affects Gay Couples(June 26, 2013)
Now that the Supreme Court has struck down the Defense of Marriage Act, some of these issues will be wiped away. The ruling makes clear that married gay couples living in states that recognize their unions will immediately gain access to more than1,000 federal benefits, like Social Security and family leave rights. Less certain is how couples living in the remaining 37 states will fare.
The murkiness exists because federal agencies generally defer to the states to determine a couple’s marital status. Some agencies look to the laws in the state in which a couple now live, for instance, while others look to those in the state in which the couple were married.
“Unless the administration changes its practices and rules — and in a couple of cases, unless the law changes — then couples residing in a nonmarriage-equality state may not be recognized for some federal programs,” said Brian Moulton, legal director at the Human Rights Campaign. “Now that we have an opinion out, we will be anxiously awaiting what the administration will say about this and urging them to ensure that all married couples, regardless of where they live, are fully recognized.”
White House officials said that they had already begun analyzing the hundreds of relevant laws and statutes at issue and were working with the Justice Department to make benefits available as swiftly as possible.
But even if the administration were to apply the ruling broadly, gay married couples would still not be on entirely even ground with their heterosexual peers. Until other states approve the unions, couples will still need to travel to one of 13 states or the District of Columbia to get married. And they will still need to deal with a patchwork of state laws that could make it difficult to get a divorce or establish legal ties to their children.
Of the estimated 650,000 same-sex couples living together nationally, about 114,100 are legally married, according to the Williams Institute. But those figures could increase, given the court’s other ruling on Wednesday that effectively removes legal obstacles to same-sex couples marrying in California.
Here’s how many of them will be affected:
Gay married couples living in states where same-sex marriage is legal can apply for Social Security benefits on their spouses’ earnings records, as well as survivor benefits. The Social Security Administration typically looks to the states to determine whether a person is married, which could create problems for couples that move to a state where it is not.
But it is possible that benefits would extend to couples in certain civil unions and registered domestic partnerships. The agency’s rules also say that if a person is not married — but would inherit property from a spouse as a married person would without a will according to their state’s law — that person is also entitled to benefits.
“Though still untested while DOMA has been in place, we presume that under this provision partners in a civil union or comprehensive domestic partnership (or even in a less comprehensive domestic partnership but one in which you can inherit under state law, as in Wisconsin) could claim spousal benefits,” said Susan Sommer, director of constitutional litigation at Lambda Legal, a gay rights advocacy group
Federal Income Taxes
Married couples living in states where gay marriage is legal will be able to file joint federal returns. That should save some couples money, especially when one person earns much less or does not work at all. High-income couples with two working spouses will probably pay more.
That said, filing jointly can cause even lower-income couples to become ineligible for certain tax savings like the earned-income tax credit. Ultimately, the tax consequences will be based on where couples live, their income and their particular circumstances.
Couples who would have saved significant sums by filing jointly might want to consider amending their recent tax returns. Such amendments have been permitted for the last three tax years, according to Patricia Cain, a professor at Santa Clara University School of Law and an expert on sexuality and federal tax law. More specifically, that means many taxpayers can refile for tax years 2010, 2011 and 2012. The three-year clock started on April 15 for people who filed on or before that date; those who received a filing extension have three years from the date they filed, she added.
What remains unclear is whether same-sex couples married in states where gay unions are legal could file joint federal returns if they moved to a state where they are not. “There has been a lot of discussion about whether the I.R.S. could recognize someone married in Massachusetts but living in Georgia,” Professor Cain said. “I think they have the power to do that, but no one seems to think they will do that. I think they will wait for guidance from the White House.”
The other big question is whether couples in civil unions and registered domestic partnerships can file joint returns. The I.R.S. typically looks to the taxpayer’s state of residence to determine whether someone is married. But a letter from the office of the chief counsel of the I.R.S., written in 2011, states that an opposite-sex couple in a civil union in Illinois should be treated as married for federal tax purposes. “The I.R.S. would have the power to interpret the word spouse,” Professor Cain said, adding that the Internal Revenue Code does not define the word.