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Legal Burdens of Gay Marriage

Advice from an Attorney

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Burdens of Marriage

Support Obligations. Family law imposes support obligations on spouses.

Public Benefit Entitlement Programs. A spouse’s income may affect entitlement for a spouse or children under public benefit entitlement programs such as Supplemental Security Income (SSI) and housing programs. These federal law burdens may not be imposed because of the Defense of Marriage Act, but the resolution of these issues has not yet been worked out.

Medicaid. The availability of resources for public benefit entitlement for spouses in the Medicaid program may be affected. This deeming of resources may not be applied because of the Defense of Marriage Act (DOMA), but if it is, then same-sex married couples will also be provided protections against spousal impoverishment.

Existing Domestic Partner Registrations, Affidavit, or Agreement

If a client has already registered as a domestic partner with Multnomah County, or has signed an Affidavit of Domestic Partner Status with an employer, the client should not terminate the registration or affidavit. At this point of development of the law of same-sex marriage, the employer health and other benefits may be based solely on the registration or affidavit. Federal ERISA law governs many private employer job benefit programs, and DOMA currently prevents the employer from treating the same sex spouse as a “spouse” for ERISA governed job benefit plans. See PLR 200339001, for an example of IRS treatment of domestic partners and DOMA application. Although public employers (such as San Jose and Seattle, as their mayors announced) can recognize the married status of same sex spouses, some public employers will refuse to take that step and indeed in some states will be prevented by law from recognizing same sex marriage.

Advocates will argue that the commonly used domestic partner registration and affidavit systems remain in effect for same sex spouse employee benefit purposes, until the spousal status is recognized. The Federal Defense of Marriage Act (DOMA) now prohibits ERISA governed private employers from recognizing same-sex marriages, although DOMA does not prevent those employers from granting domestic partner benefits. Thousands of employers do grant employee benefits to same-sex partners, using a domestic partner affidavit or registration procedure. The Defense of Marriage Act will be challenged soon, but advocates will seek confirmation from regulators and employers that domestic partner benefits continue during any period that the marriage status of the partners is unrecognized.

Some same sex couples have signed a domestic partner agreement, defining the nature and obligations of their relationship by agreement. An existing domestic partner written agreement should be reviewed if the partners marry. The lawyer may recommend amending the agreement, so that it serves as a marital agreement as well as a domestic partner agreement.

Advice to Estate Planning Clients

Clients who have married in Canada, San Francisco or Oregon, or who intend to marry in Massachusetts after May 16, 2004, should execute codicils to confirm, ratify, and revive their existing wills. Under Oregon law marriage revokes a will executed before the marriage, unless the will indicates the testator’s intent that the will not be revoked by a subsequent marriage. ORS 112.305. A will revoked by marriage may be revived by a codicil incorporating the prior will be reference. ORS 112.295 the children of a second parent adoption should qualify as both issue and lineal descendants now, but the status of children born during the marriage is not clear to this commentator. I am consulting with family law experts for pregnant same sex spouse clients now.

Estate planners for clients choosing same sex marriage should recommend dual planning, as domestic partners and as spouses. That is, the estate planning documents will recite the dual status and the intention of the parties to take advantage of both spousal and domestic partner status. The federal estate tax benefits of marriage (unlimited inter vivos gifts to spouses, unlimited marital deduction for testamentary transfers) will not be available until a DOMA challenge is successful, or other law changes occur. Whether the marriage status will permit the same sex spouses to claim a marital deduction for State of Oregon death transfer tax purposes is not clear to this commentator, although vigorous advocacy on that issue will undoubtedly ensue.

Same sex marriage clients should be encouraged to review their estate planning documents OFTEN.

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