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Bans on same-sex marriage: How they affect couples

Temma Ehrenfeld
by Temma Ehrenfeld, Dimespring Contributor

Last week, an appeals court in New York ruled that a law defining marriage as a union between a man and a woman is unconstitutional. Under the Defense of Marriage Act (DOMA), the United States cannot recognize marriages between same-sex couples.

The issue goes before the Supreme Court this week, with huge financial implications at stake. 

The court ruled in favor of Edith Windsor, an 83-year-old woman who argued that she shouldn’t have had to pay estate taxes after the death of her wife, whom she had married in Canada.

Key Takeaway: Being married is in many ways a great deal that gay couples in the United States now can’t fully share, say gay marriage advocates.  

We spoke to Larry Jacobs, a Rockville, Maryland, estate and trust attorney specializing in same-sex couples, about how bans on same-sex marriage affect his clients. “Something like 1,000 benefits flow from being a couple under federal law,” he says. Gay couples lose out on those benefits.

READ: How divorce is handled with gay couples

More taxes and paperwork: “A spouse can inherit an estate of any size without owing estate taxes,” Jacobs says. “In the most recent case, the Second Circuit ruled that Miss Windsor shouldn’t have had to pay more than $363,000 in estate taxes. But a same-sex partner now must pay estate tax on an inheritance above $5 million plus sometimes state estate taxes in states that don’t recognize same-sex marriage. Here’s another tax issue: married opposite-sex couples can file federal income taxes jointly, which is cheaper for average tax-payers. Same-sex couples also face more paperwork.  If you live in DC, which does recognize same-sex marriage, you can prepare a joint state tax return but you also need to do two individual returns for the federal government.”

Missing Benefits:  “A surviving spouse gets a significant benefit from Social Security,” Jacobs says. “When my mother died last year, my father continued to get virtually all of her benefits on top of his own. A gay surviving spouse doesn’t see any of that money. You can’t name someone else as a beneficiary of your retirement plan without your spouse’s consent.  But that protection doesn’t apply to same–sex couples. Health insurance plans offered by employers are covered by federal law that requires the plan to allow an employee to add a spouse. But your gay partner doesn’t get access to your health insurance unless your employer is especially open-minded and generous. Immigration benefits are linked to marriage. You can marry a non-U.S. citizen of the opposite sex and help your partner eventually become a citizen here, but not if your partner is the same sex. That’s true even if you marry under another country’s law.”

READ: Tax savings for domestic partners

State Bans: “If DOMA is struck down, it’s likely that similar state laws will die, too,” Jacobs says. “Virginia, for example, is still living in the 19th century: the state has prohibited any type of benefit for a partner in a same-sex relationship. In ‘Loving vs. Virginia’ — a great name for a case — the U.S. Supreme Court struck down another Virginia marriage law. Until that decision in 1967, Virginia banned marriage between people of different races. Right now, if two men married under D.C. law   walk across Memorial Bridge to Arlington, Virginia, they’re not married on the other side. If one of them was hit by a car in Arlington, his partner couldn’t make medical decisions for him unless he had a health care power-of attorney.”    


Temma Ehrenfeld is a New York-based writer. After many years at Fortune and Newsweek, she now writes on a variety of subjects for The New York Times, CBS Moneywatch, Scientific American MIND and MS., as well as Dimespring.