Post-DOMA Planning:
A Look at the Landscape and What May Come Next
Since the recent landmark Supreme Court decisions, some issues have been made clear regarding the rights of same-sex couples, but many more issues are still to be resolved. Although the Court’s decision in U.S. v. Windsor gave Federal recognition to same-sex marriages, states are still able to set marriage laws for themselves, which will inevitably lead to some inconsistencies in the benefits available to married same-sex couples based on where they live.
As of August 1, 2013, thirteen states and the District of Columbia will recognize same-sex marriage. Thirty-five states have banned same-sex marriage by legislation or constitutional amendment. Adding confusion, most federal benefits associated with marriage will not be available to those couples in civil unions or domestic partnerships. Federal recognition is unlikely to be entirely uniform due to variations between the states. Recognition of some benefits will hinge on two different concepts: “place of celebration” and “domicile.” Place of celebration refers to the location in which a couple gets married. Domicile refers to the couple’s primary residence, where they make their home. If a same-sex couple lives in and is married in a state that recognizes same-sex marriage, they should be able to receive federal recognition of their marriage and enjoy all the benefits that go along with that recognition. However, if they were married in a state that recognizes same-sex marriage but are domiciled in a state that does not, they may not be able to receive some or all of the federal benefits associated with civil marriage. It is not yet clear whether some benefits will be granted based on the state where the marriage was performed or the state where the couple is domiciled. These uncertainties are unlikely to be resolved overnight.
Much of this confusion stems from the less talked-about Section 2 of DOMA. While the Court’s decision in U.S. v. Windsor invalidated Section 3 of DOMA, allowing for federal recognition of same-sex marriages, the Court did not consider Section 2 in their decision. Therefore, Section 2. which gives states the right to deny recognition of same-sex marriages performed in other states or territories, currently remains in effect. Aside from the issues of inequality that result from Section 2, marriage recognition that varies by geographical location is complicated and potentially problematic. This issue is likely to be litigated further in the future because there is a potential conflict between Section 2 and the “Full Faith and Credit” clause of the U.S. Constitution, which requires states to recognize “public acts, records, and judicial proceedings of every other state.” However, until this time these inconsistencies in same-sex marriage recognition between states are something same-sex couples and their advisors should be aware of when planning for the future.
Lawyers and other advisors to same-sex couples should monitor current cases and appeals concerning same-sex marriage as well as the shifting political landscape. Same-sex couples should meet with their advisors periodically in order to re-evaluate their retirement and estate plans based on changes in the law that may continue to occur either legislatively or through the courts.
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