When the U.S. Supreme Court declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional in June 2013, the decision was met with jubilation as the Court reaffirmed not only marriage but also “personhood and dignity” for same-sex couples. However, the Court also noted in United States v. Windsor that while the case focused on estate taxes, DOMA actually impacts more than 1,000 statutes and federal regulations pertaining to social security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.
“There was all this excitement over the decision itself, but then came the cavalcade of questions,” says Debra Guston, managing partner at Guston and Guston, LLP, in Glen Rock, New Jersey. Guston represents lesbian, gay, bisexual, and transgender (LGBT) couples in estate planning, family law, and gay and lesbian rights’ issues. “For about two or three months, the government was issuing daily advice, but there were also huge debates about what to do.”
Because of these complications, many family law practitioners find themselves on unfamiliar territory. “A lot of them are unfortunately applying traditional rules to estate planning for LGBT clients, which is wrong,” says Claudia Work, a civil litigation and family law practitioner with Campbell Law Group, Chartered, in Phoenix. Work serves on the National Family Law Advisory Council for the San Francisco-based National Center for Lesbian Rights. “There are so many pitfalls, so many contradictions, and so many unknowns. You can’t take what you did for Bill and Mary and use it for Sue and Jane. It’s not the same.”
The War Between the States
While the Windsor ruling centered on estate taxes, the federal recognition of same-sex marriage changed the playing field for everything from custody and divorce to health directives, estate planning, pension, and dozens of other benefits. Further, the clash with state laws in the 18 states where same-sex marriage is not recognized combined to create situations where parental and spousal rights secured in one state may not be recognized in another.
Such was the case with Niki Quasney and Amy Sandler. The couple had been together for 12 years when they decided to marry in 2013. After marrying in Massachusetts, they returned to Indiana with their two children to be closer to Quasney’s family because she had been diagnosed with ovarian cancer. When Quasney began experiencing chest pains from a pulmonary embolism, she drove herself 40 miles to Chicago because the Indiana hospital refused to recognize Sandler as her next of kin.
“She put herself in a dangerous situation because she was afraid her spouse would not be able to be with her or allowed to make medical decisions if necessary,” says Camilla Taylor, marriage project director for Lambda Legal in New York. Taylor filed an emergency motion in the Seventh Circuit Court of Appeals on behalf of the couple. On September 4, the court ordered the state of Indiana to recognize their marriage. This means Sandler could be on the death certificate and thus make funeral decisions. (Editor’s note: The court’s decision invalidated same-sex marriage bans in Indiana and Wisconsin. See Baskin v. Bogan, 983 F. Supp. 2d (2014).)
Since then, the U.S. Supreme Court has denied review of cases in five states—including Indiana—where a federal judge and the U.S. Court of Appeals ruled that denying same-sex couples the freedom to marry is unconstitutional. Within the affected jurisdictions, the decision impacted a total of 11 states that had previously refused to recognize same-sex marriage, sending same-sex couples flocking to the courthouse to wed almost immediately.
Quasney’s case exemplifies how—despite the Windsor victory—family law practitioners need to be aware of the complex and numerous documents required to assure full protection for many same-sex couples. Work says she advises her LGBT clients to “arm themselves with a little folder of documents that everyone needs: a will, trusts, mutual powers of attorney, directives for health care.”
For couples with a biological child, many lawyers recommend that the nonbiological parent adopt, even if their state includes both parents on a birth certificate. Vickie Henry, youth initiative director at Boston-based Gay & Lesbian Advocates & Defenders (GLAD), agrees. While Henry lives in New Jersey, which recognizes same-sex marriage, her mother lives in Tennessee. When traveling with her wife and children, Henry brings their documentation with them. “If something were to happen to me there, I don’t want to find out what Tennessee thinks about same-sex marriage,” she says.
Another document to consider is the prenuptial agreement. Divorce can be difficult if a couple lives in a state where the marriage is not recognized because many states that do recognize same-sex marriage have residency requirements for divorce. When a couple parts ways without a divorce, they still have the responsibilities of a married couple. If one party becomes injured, the spouse may be the only one legally able to make medical decisions. Further, individuals can’t remarry if the first marriage was not dissolved.
While a growing number of states are recognizing this and waiving the residency requirement if a couple was married in that state, all states have different laws concerning settlement of property. For example, California has community property laws, and because couples seldom think of divorce when they marry, an individual may be shocked to find out that his or her assets will be split evenly.
“People are now entering into marriage very thoughtfully,” Guston says. “It’s an economic relationship as well as a romantic one.”
Civil Unions and “Gap” Families
For some same-sex couples, a civil union or domestic partnership (also an option for heterosexual couples in some states) works better financially, especially if one is a high earner. Some states (such as Illinois) give couples the option to predate their marriage to their civil union date to get the benefits of marriage denied them prior to Windsor. In other states (such as Vermont and New Jersey), the equal treatment process is automatic. This causes problems for domestic partners who choose not to marry for financial or other reasons.
Couples married prior to the Windsor decision may be able to recoup overpayment of taxes or other benefits. Partners may have been taxed on employer benefits or may be entitled to Social Security benefits or inheritance taxes.
The “gap” between the DOMA decision and when a marriage took place may still be unresolved. For example, Social Security provides spousal benefits even after a divorce if the marriage lasted for 10 years. However, a same-sex couple may have been together for 18 years but only married for eight because that is what the law allowed. “This could be playing out for a number of years,” Henry says.
In some instances, individuals with civil unions and domestic partnerships may end up in multiple marriages. A couple may have a civil union in one state and a marriage license in another; if the relationship ends, then all of the legal statuses must be dissolved.
“A practitioner needs to know the questions to ask,” says Bill Singer, a partner with the Belle Mead, New Jersey, firm of Singer & Fedun LLC. Singer created the LGBT Family Law Institute, a project of the National LGBT Bar Association in Washington, D.C., and the National Center for Lesbian Rights (sidebar, page 11).
Many law practices see the changing landscape surrounding same-sex marriage as an opportunity for expansion. This concerns long-time practitioners such as Singer, who lectures on the need to be sensitive to the needs of the LGBT community.
“People are not getting proper advice,” he points out. “There’s so much to untangle, and it’s all part of knowing the client.”
“This whole area of law is an amalgamation of different practices and different considerations—we’re much more conscious of jurisdictional issues,” says Manuella Hancock, a founding member of Washington, D.C.-based Hancock Legal PLLC, who works with alternative families on estate planning and other life management issues in Arizona.
Many LGBT rights advocates believe all states eventually will have to conform, but they expect continued resistance from the bench and within government.
“Already we’re seeing the battleground moving to nontraditional family planning and alternative families,” says D’Arcy Kemnitz, executive director of the National LGBT Bar Association.
In all likelihood, the same patchwork approach to issues like adoption and surrogacy will exist at the state level, giving family law practitioners more to keep up with. “The definition of family is going to continue to change,” Kemnitz concludes.