Gays who wed in California won't have equal marriage rights - San Jose Mercury News

Gays who wed in California won't have equal marriage rights - San Jose Mercury News

Gays who wed in California won't have equal marriage rights
By Linda Goldston
Mercury News
Article Launched: 06/11/2008 01:30:25 AM PDT




Thousands of gay couples will marry in California during the upcoming months, but when it comes to the law, not all marriages are created equal.

Same-sex married couples can expect many of the same marital rights as heterosexual couples under state law. But things will be different if they end up in bankruptcy court, take a leave from work or own a vacation home out of state. In those areas, federal law comes into play, and the federal government does not recognize marriages between lesbians or gay men.

For a look at some of the circumstances that may come in life and marriage, and how they apply to same-sex couples under current law, see Page 6A.

1. TAX BREAKS

There will be more paperwork, but same-sex couples won't get the same tax breaks heterosexual couples enjoy.

Tax codes generally favor married couples and families. But while same-sex married couples can file their state taxes jointly, they can't do so with federal taxes.

In a strange twist, many same-sex couples will have to figure their federal taxes twice. That's because they need to know their combined adjusted gross income for their state tax form, but the only way to calculate that number is to fill out a federal form as if they were married. Then they have to throw that form away and file federal taxes separately.

2. WHEN A MARRIAGE SOURS

Next week, it will be easy for gay couples to find someone to declare them married until death do they part. If the vows don't work out, divorcing could be trickier if they live or move outside the state.
While there are no residency requirements to marry in California, you must establish residency to be divorced - by living in California for at least six months, three of them in the county where you would want to file for divorce. That sets up the possibility that a couple from Nevada that simply visited here to be married would have to move here for a half-year to end the marriage.

3. DEATH

When the ultimate parting occurs, married same-sex people can inherit a spouse's property without paying hefty inheritance taxes, just like any married couple. They should, however, draw up a will. That's because, unlike married heterosexual couples, they could face problems if they live or travel out of state, or own property outside California.

"If there's property located in another state and no will or trust giving it to the surviving gay or lesbian spouse, there could be a legal fight if the blood relatives argue that the marriage is not recognized in that state and therefore they get the property," said Jennifer Pizer, senior counsel for Lambda Legal, who was part of the legal team that represented the 14 same-sex couples involved in the state Supreme Court case.

When a spouse dies, the other partner of the same-sex couple will not receive Social Security survivor benefits, which are granted to heterosexual couples.

4. IMMIGRATION

Marriages between a man and a woman are recognized by the federal government, so a foreign-born spouse in an opposite-sex marriage has the right to apply for U.S. citizenship. That same right does not extend to same-sex couples. One spouse cannot sponsor a same-sex partner to grant immigration status.

"So if you're a binational couple, you really need to speak to an attorney," said Melanie Rowen, staff attorney for the Center for Lesbian Rights, which argued the landmark case before the California Supreme Court.

5. CHILDREN

If a child is born into a legal relationship, whether a marriage or a registered domestic partnership, California law assumes both adults are legal parents to that child.

But Pizer and others recommend that same-sex parents obtain judgments from a court proving that each adult is the legal parent so they won't have any problems in other states.

"If you have an adoption judgment, other states should respect it," she said. "It is entitled to recognition in all 50 states."

6. PAYING THE BILLS

Bankruptcy law, a federal law, says that if you declare bankruptcy as a couple, you can retain enough assets to support both spouses. But you won't be able to declare bankruptcy as a couple if you're a same-sex couple, so you can't get the protection.

That means state law governs, and state law says you're responsible for each other's debts. So, Pizer said, it is possible that all of your assets could be taken to pay off your spouse's debts.

7. FAMILY LEAVE

An employer cannot fire a worker who requests a six-week unpaid medical leave to care for a spouse or child. However, since the family leave act is a federal law, this does not apply to gay couples.

"You can be at home caring for your very sick same-sex husband or wife and your boss can fire you," Pizer said.

8. IN SICKNESS AND IN HEALTH

Some employers, especially in Silicon Valley, already offer health insurance coverage to registered domestic partners.

More companies are expected to offer it now that same-sex marriage is legal in California. However, a company could claim its headquarters is in a state that does not recognize same-sex marriage and deny benefits to a same-sex spouse. Federal law often limits employees' ability to challenge such different treatment.

But "one of the most unfair tax treatments" by the IRS is when a same-sex spouse is covered by the other's health insurance: The IRS taxes the health benefits as income, but does not for heterosexual spouses, said Brian Chase, senior staff attorney with Lambda Legal.

Same-sex spouses also will be unable to sign up for COBRA post-employment continuation insurance if a spouse leaves a company - unless the company volunteers to offer it. The program is federal, so employers are not required to offer the option.

9. CRISIS SITUATIONS

In California, same-sex spouses will now have the same rights as opposite-sex spouses in medical emergencies. A spouse, for example, will be able to visit the love of his or her life in intensive care and have the authority to make life-or-death decisions if the partner is too ill to decide.

But, again, if the couple are traveling in a state that does not recognize gay marriages or domestic partnerships, they could be denied those rights.

In this situation, like many, it helps to also be registered as domestic partners in California so that states like Washington and Oregon, which recognize domestic partnerships, will grant the same rights that California does. Especially for those who travel a lot, experts recommend that same-sex couples who marry also apply to have a California registered domestic partnership.

10. ON THE ROAD

Same-sex couples traveling out of state should carry copies of their marriage certificate, domestic partnership registration, a health care proxy that authorizes each of spouse to speak for the other and, if they have children, copies of documents that show both adults are parents.

As Pizer put it, "Pack your toothbrush and take your documents."




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