New York now recognizes same sex marriage, an unambiguously positive legal development. That does not mean, however, that marriage is the clear choice for all committed same sex couples.
The Defense of Marriage Act continues to allow the federal and other state governments to not recognize same sex marriages, which means that many of the benefits available to married straight couples are not applicable to married same sex couples. Perversely, the drawbacks of marriage are equal if not greater. Additionally, many of the benefits that automatically accompany marriage can be obtained through other means. Given the limited recognition of same sex marriage, even married same sex couples may be advised to use those other means, which further mitigates the advantages of marriage. Finally, registered domestic partnership offers several of the benefits of marriage while being more easily dissolved.
Therefore, the decision of whether or not to marry may be less straightforward for same-sex than for heterosexual couples – even beyond the strong emotional reasons that some couples may bring to the question.
Benefits to a same sex couple residing in New York only available through marriage:
+ Health insurance through spouse’s employer (as long as the employer is not the federal government)
+ Right to hold property jointly as tenants of the entirety
+ Right to statutory regulated intestate inheritance if spouse dies without a will
+ Right to an inheritance from your spouse even if s/he tries to disinherit you (barring a prenuptial waiver)
+ Right to file joint NY state taxes and benefit from spousal deductions and exemptions
+ Right to inherit up to $1 million free of NY state taxes
+ Privilege not to testify against one’s spouse and inability to testify without spouse’s consent as to ‘confidential communications’ between spouses in NY state courts
+ Right to a default regime of court ordered equitable distribution of property in case of divorce (subject to broad but not unrestricted limitation via contract)
+ Assumption of paternity/maternity for a child born to your spouse (not necessarily enforceable out of state)
+ Right to maintain a wrongful death claim or an action for loss of consortium in NY state courts
+ Right to support from spouse, and shared liability for debts
Benefits to a same sex couple residing in NY available through marriage or domestic partnership:
+ Visitation in certain city facilities such as prisons and hospitals
+ Eligibility to qualify as a family member to be added by the New York City Housing Authority to an existing tenancy as a permanent resident, and to maintain occupancy in a rent-stabilized or rent-controlled apartment if it is your spouse who is on the lease and s/he dies
+ If one spouse is a New York City employee, the other spouse is entitled to health benefits and leave for bereavement or child care.
Benefits available to a same-sex couple residing in NY via other legal means:
+ May create an enforceable cohabitation agreement that sets out the terms for distribution of property in case the relationship ends
+ May appoint one another to make health care and financial decisions in case of incapacity
+ May make wills in one another’s favor
+ May adopt in order to acquire parental rights and obligations for one another’s children
+ May name each other as agents for disposition of body in case of death
Potential disadvantages of marriage:
- Dissolving a marriage is, at best, time consuming and costly
- If a couple moves away from a jurisdiction that recognizes same sex marriage, it may be extremely difficult to get a divorce at all
- Spouses are subject to court ordered division of property and orders of maintenance in case of divorce (subject to broad but not unrestricted limitation via contract).
- Personal liability for debts created by a spouse during the marriage
- Obligation to support spouse
- Impossibility of disinheriting spouse (subject to premarital waiver)
Potential future benefits of marriage currently available only to opposite sex couples:
+ Right to joint filing of federal taxes, including applicable spousal deductions/exemptions
+ Right to $5M portable federal estate tax exemption
+ Right to federal gift tax exemption
+ Right to unrestricted rollover of inherited IRA and 401K funds
+ Right to be insured under spouse’s health insurance
+ Right to coverage under spouse’s medicare, disability, and/or social security benefits
+ Right to inherit benefits after death or receive a portion of benefits after divorce, including social security, veterans, and military benefits.
+ Right to sponsor spouse for immigration and/or residency
+ Marriage and spousal rights will be recognized all over the country (and generally throughout the world)