Same-Sex Marriages, Death and Taxes (Gotham Gazette, March 2008)

Same-Sex Marriages, Death and Taxes (Gotham Gazette, March 2008)

Same-Sex Marriages, Death and Taxes
by Andy Humm
14 Mar 2008

"In this world, nothing is certain but death and taxes," Benjamin Franklin famously said. But for committed same-sex couples in New York, these are two areas of law, along with many others, remain far from settled. Here's a rundown of some key recent developments.

What Happens in Canada Doesn't Stay in Canada
In a ruling that could prove pivotal, a state appeals court last month decided that legal same-sex marriages established elsewhere must be respected by all public and private entities here, even though New York State does not license the marriages of gay couples (unless one is a gay man and the other is a lesbian woman).

The mid-level Appellate Division's 4th Department, a relatively conservative court, ruled unanimously on February 1 that a New York lesbian couple married in Canada could not be denied marital benefits from Monroe County Community College where one of the women works. The decision "rests on a century's old law--the marriage recognition rule," said Matt Faiella, a staff attorney with the http://www.nyclu.org New York Civil Liberties Union, which represented the women.

Even though the Court of Appeals, the state's highest, ruled in 2006 that the state did not have to grant same-sex couples the right to marry, the decision did not say that it could not do so. New York is one of a handful of states that has not passed a law forbidding recognition of gay marriages. And since same-sex marriage is not "abhorrent" to New York's public policy (as, say, a marriage between brother and sister would be), the upstate appellate court concluded that legal marriages of same-sex couples who wed in Canada must be given the same recognition as mixed gender Canadian marriages. It falls under the principle of "comity" whereby states and nations give effect to legal agreements from elsewhere.

While there are several other cases at the Appellate Court level involving recognition of same-sex marriages licensed elsewhere, the upstate decision applies to the entire state unless another division of the Appellate Court makes a contradictory ruling. And while Monroe County is trying to appeal the decision that they must recognize the marriage of two women, the state's high court does not have to hear its appeal and probably will not. (The New York Times did a good survey article on these cases and on a ruling that two women married in Canada but living here can dissolve their marriage only through divorce proceedings that one of the spouses is resisting.)

Thus, we have the somewhat wacky situation in New York in which a gay couple can go to Toronto to get married and come back to our state and be legally married under New York law, but they cannot go down to their local city hall and wed.

This is not the first time that New York has given legal recognition to out-of-state same-sex marriages. In 2004, then-Attorney General Eliot Spitzer unofficially opined, "Under state court precedent, same sex marriages and civil unions lawfully entered in other jurisdictions outside the state should be recognized in New York."

Also in 2004, then-State Comptroller Alan Hevesi began treating these couples as married under the State Retirement System. His move survived a lawsuit challenge by the conservative Alliance Defense Fund.

After he became governor, Spitzer ordered the Civil Service Department to recognize legally married same-sex couples in 2007, compelling any municipality linked to the state benefits system to do so as well. None of this is likely to be undone by new Gov. David Paterson since he has a longer and stronger record on gay rights, including marriage equality, than the man he replaces.

Legal Misrepresentation
Attorney General Andrew Cuomo filed a friend-of-the-court brief on behalf of Monroe County couple, but his office did not return calls on how his office will make sure all state departments comply with the court's decision. For now, at least, the state Department of Taxation and Finance is at odds with it.

In 2006, the department issued an advisory opinion in 2006 insisting that state law requires married couples to use the same filing status as they use on their federal tax forms. Since the federal government bans federal recognition of same-sex marriages under the Defense of Marriage Act, legally married same-sex couples -- even in Massachusetts, which license such marriages -- must file as single on their federal returns. On their state returns, gay married couples in Massachusetts must file as married. Since their state tax is based on the federal system, they then have to do two federal returns: one a "dummy" return to figure out what their state taxes would be as a married couple and the other, the real one for federal purposes, as single. New York is not allowing that.

Thomas Bergin, a spokesperson for the state tax department, said, "The law would have to be changed or revised" for gay married couples to be able to file as married in New York, but he conceded that their counsel had not reviewed how the Monroe County case might chnge that.

"We have asked the governor to take another look at that," Susan Sommer, senior counsel at Lambda Legal Defense, a gay advocacy group, said.

"State law requires allowing same-sex couples who are married to file as married," Sommer added. She would not go so far as to say that these couples should file as married in New York, but suggested they consult with their tax advisers and note on their state tax forms that they are married and are filing as single "under protest." "People should not have to swear under penalty of perjury that they are something that they're not," she said.

Mark Munroe, a certified public accountant in Manhattan who has many gay clients (including this reporter), said that he would advise people in same-sex marriages to file as unmarried per the official advisory opinion of the tax department. "If my clients felt strongly about it, I will file a joint return for them if they indemnify me for penalties," he said. As a practical matter, he said the only couples who would be significantly helped by filing jointly are those in which one of the spouses does not work.

New York City grants legal recognition to out-of-state same-sex marriages, civil unions and domestic partnerships. The city Department of Finance was not immediately able to say whether the city's personal income tax takes these arrangements into consideration. Sam Miller, a spokesperson for the department, said that city income taxes are based entirely on state taxes, which, the state insists, are based on federal taxes.

'Til Death Do Us Part
The legal status of one's relationship plays a critical role in determining who gets to dispose of a person's remains and inherit their property. In a legal marriage, the spouse inherits the property tax free. If a married person dies without a will, his or her spouse automatically inherits the estate.

New York State does not marry gay couples, nor does it have registration for domestic partners or civil unions as New Jersey does. One of the only rights that domestic partners have from New York State is to control the remains of their dead partners. A bill establishing this slipped through with almost no objection in 2006.

Despite this law, death certificates in the state, including the city, do not list "domestic partner," under marital statuses that include "married, married but separated, widowed, divorced, never married and unknown." There is room for the name of a "surviving spouse," but not for a surviving domestic partner. Domestic partners in New York City -- same-sex and mixed sex -- have been able to register their partnerships since 1993 under an executive order by Mayor David Dinkins. The Department of Health and Mental Hygiene, which issues death certificates, indicated that they are "aware of the issue" involving the partnerships and are "working to find a solution."

"We are working with them [the health department] on the fastest and most effective way for domestic partners to be listed on death certificates," said Anthony Hogrebe, a spokesperson for City Council Speaker Christine Quinn, herself an out lesbian

Brendan Fay, who married his husband, Thomas Moulton, in Toronto in 2003 and lives with him in Astoria, Queens, remembers the Canadian judge telling them that from that day forward, they were obligated to hold themselves out to the world as the married couple they are. They have -- even though the U.S. government won't recognize the marriage for immigration purposes (Fay is an Irish national.) Moulton has gotten marital benefits for Fay at his hospital job. Together, they help other same-sex couples travel to Canada to marry through their organization Civil Marriage Trail

"It's a pity gay couples have to go to all this expense to go to Canada to marry and be legally recognized in New York," Fay said. "I'm working for the day when they can marry right here in their home state and when the United States will give us marriage equality as well."

Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.

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