What Happens if you are a Same-Sex Married Couple in a State that does not Recognize your Marriage?

By Vivian L. Holley, JD, MA, CFLS, MFT

The United States Supreme Court stopped short of recognizing a right to marry for same-sex couples in its two decisions of June 26, 2013.  While striking down the part of the Defense of Marriage Act (DOMA) that did not provide over a 1,000 benefits to validly married same-sex partners, it did not undo the right for each state to decide the issue themselves, nor the part that says states do not have to recognize the valid same-sex marriages entered into in other states.  That leaves a patchwork set of marriage and domestic union laws in place across the United States.

As same sex married couples move from state to state, right now it is almost impossible to determine what, if any of their rights will be recognized in the next state for important aspects such as filing taxes, health insurance benefits for their spouse, and visitations to hospitals, etc. For a map outlining the current status of the laws of each state with regard to same-sex marriage in general, see http://graphics.latimes.com/usmap-gay-marriage-chronology/.

As of August 1, 2013, the thirteen states and the District of Columbia that allow same- sex marriages and presumably recognize same sex-marriages from other states are listed below.  In these states, same-sex married couples and their children should have all the same rights as opposite sex couples and families:

• Connecticut
• California
• Delaware
• Iowa
• Maine
• Maryland
• Massachusetts
• Minnesota
• New Hampshire
• New York
• Rhode Island
• Vermont
• Washington
• District of Columbia.

And, here is a list of the countries where same-sex marriage is legal (or will be by the end of August 2013):

• Netherlands  (2000)
• Belgium (2003)
• Canada (2005)
• Spain (2005)
• South Africa (2006)
• Norway (2009)
• Sweden (2009)
• Argentina (2010)
• Iceland (2010)
• Portugal (2010)
• Denmark (2012)
• France (2013)
• Uruguay (2013)
• New Zealand (2013)

Taking a look at the impact of the ruling on DOMA, here are a few changes.  On taxes, the tables are now turned.  Whereas before if you were a same-sex validly married couple, you could file jointly a state tax return only if your state recognized your marriage, but you could not file jointly on a federal return.  Now, you can file jointly on a federal return, but not on state returns in the majority of states that do not recognize same-sex marriages.

What if you want to add your same sex spouse to your health insurance benefits? In 14 states you may and companies must offer it, but in many of the rest of the states, companies have no legal obligation to provide that coverage (unless perhaps they recognize domestic unions). This lack of uniformity across states for a validly married couple from one state who has moved to another and then denied benefits is a law suit ready to happen – another challenge to the provisions of DOMA.

Can you ask your employer for a transfer to a more friendly state that would provide such benefits?  That will depend on the policy of the individual company.  The Bank of America is wrestling with the question right now. Its headquarters are in North Carolina, a state that does not recognize same sex-marriages. So, employees may be asking for a transfer to a more friendly state that provides more benefits for their families.  Will that be grounds enough to for the transfer? What if it is denied – will that back-fire on the employee and the application harm the employee and his or her chances for a promotion back in North Carolina?

We will have to wait and see what the fallout is in the states as a result of the two landmark decisions.  There will likely be many more ballot measures in states to allow recognition of same sex marriages – campaigns are already gearing up in several states.  And, unless multi-state companies expand coverage on benefits and programs to same-sex married partners so they are the same as programs they give to heterosexual couples, they are likely to feel the brunt of discrimination suits under the equal protection sections of the constitution.  The Supreme Court may have punted on the question about the constitutional right to same sex marriage nationally across the United States, but the murkiness now caused by the patchwork and inconsistencies of laws will soon become so burdensome that legislatures and courts will be obliged to find a common ground for all types of its married citizens regardless of the state of legal residency.