. . . from a lawyer’s perspective.
by Connie Moore and Debra E. Hunt
What a difference a few months makes! When last we wrote about same-sex marriage, the U.S. Supreme Court had not yet issued the historic rulings in the United States v. Windsor and Prop. 8 cases. Now we have the blessing of the federal government for same-sex marriage, and it seems that every few days we learn of more benefits that will apply to all couples, regardless of their state of residence.
There have also been a few setbacks in states that prohibit same-sex marriage. Although some have refused to follow the federal government’s lead, there seems to be an escalating trend toward acceptance. We had the opportunity in August to confer with other legal professionals across the country, and most are hopeful that discriminatory laws will fail—possibly sooner than anyone anticipated.
In the meantime, we are busy getting the word out and adapting to the changes that acceptance brings. While Texas remains a “non-recognition” state for most state-administered benefits, there are an increasing number of federal benefits that apply to all same-sex married couples, regardless of domicile. As of this writing, here’s what Texas same-sex couples who were legally married elsewhere need to know.
Federal Income Taxes
If you are in a same-sex marriage and remain so through the end of the year, you and your spouse are required to file either “married joint” or “married separate” federal income tax returns beginning in 2014 for the 2013 tax year. If you were married on December 31 of any of the three prior tax years, you have the option, but are not required, to file amended tax returns. Texas does not have a state income tax, but if you are a wage earner in a state that does require you to file a state income tax return, check with your local tax advisor about how to file in that state. There is no such thing as “common law divorce,” so if you were legally married, have separated from your spouse, and have not divorced before the end of a tax year, you are required to file under the “married” status.
Federal Estate and Gift Taxes
All same-sex spouses are now entitled to the unlimited marital deduction for avoiding gift and estate taxes, regardless of domicile. Consult with your tax professional for advice on how to recover gift or estate taxes that were paid because your marriage was not recognized.
Tax-deferred Retirement Savings Plans
The fall of DOMA has opened the door for application of spousal benefits and protections for employer-provided retirement plans. While not all retirement plans are affected, those governed by ERISA must now acknowledge and protect the spouses of same-sex married employees. If you are married and have not named your spouse as a primary beneficiary on ERISA-governed benefits, you should complete a new beneficiary designation with your spouse giving the required consent for you to name a non-spousal beneficiary.
Employer-provided Health Insurance
Employers who provide health insurance for same-sex married employees may no longer assess the costs of a spouse’s insurance to the employee and withhold taxes for that portion. Spouses are also entitled to COBRA coverage if a qualified employee loses his or her job.
Same-sex spouses can sponsor their non-resident alien spouses for U.S. residency, subject to requirements that are now the same for all married bi-national couples.
Military Spousal Benefits
Military benefits are available to the same-sex spouses of active-duty military personnel on the same basis as opposite-sex couples.
Veteran’s Spousal Benefits
The Department of Justice has determined that VA benefits will extend to all same-sex spouses. Regulations that currently limit the availability of benefits to opposite-sex spouses will not be enforced.
Civilian Federal Employee Benefits
The Office of Personnel Management, which oversees benefits for civilian federal employees, issued one of the first post-Windsor policy changes extending benefits to all same-sex spouses of federal employees. Federal employees who were married at the end of June were notified to enroll their same-sex spouses in the applicable benefits program within sixty days.
Social Security Retirement, Disability, and Death Benefits
As of this writing, the Social Security Administration has not issued guidance on whether it will ignore the current regulations defining a “spouse” based on the laws of the state of the applicant’s domicile when benefits accrue. SSA has started paying benefits for eligible same-sex spouses who live in recognition states, and has asked that all persons who may be eligible for benefits file claims even if they currently live in a non-recognition state.
Divorce is generally not available to same-sex married couples in Texas. There are two dissolution cases pending at the Texas Supreme Court that are set for oral argument later this fall. While these cases are pending, same-sex divorces are being granted on a limited basis to residents of Travis County as long as all issues are agreed. Until Texas courts are fully available, couples who married in California, Delaware, Washington DC, Minnesota, Vermont, or Canada and now live in a non-recognition state can return to those jurisdictions to obtain a court-ordered dissolution of the marriage. All others must establish residency in a recognition jurisdiction to obtain a divorce.
For more detailed information about these and other federal benefits that extend to same-sex marriages, visit our website at mooreandhunt.com and look for the links to marriage information.
The decision to marry remains a personal decision that should be made with careful consideration. It is remarkable that we now live in an age when same-sex couples are able to consider so much more than just their personal commitment in making this important decision.
Moore & Hunt is the first women-owned boutique law firm in Houston to openly focus on lesbian, gay, bisexual, and transgender issues. Operating in the same location since 1987, the firm is comprised of attorneys Connie Moore and Debra E. Hunt. Moore works with families of all types with formation issues (adoption, surrogacy, and parentage in assisted reproduction) and family dissolution (divorce and custody litigation). Hunt concentrates on personal document drafting (wills, trusts, and powers of attorney), estate planning, probate litigation, contract negotiations and disputes, corporation and small-business formations, and real-estate matters. Both attorneys are members of the National Family Law Advisory Council of the National Center for Lesbian Rights. The firm is a part of the cooperating attorney network of the Lambda Legal Defense and Education Fund. Moore and Hunt are charter members of the Texas State Bar Section on Sexual Orientation and Gender Identification Issues. Moore has been trained in collaborative family law and is a strong believer in the collaborative model to resolve family disputes.