DOMA and Prop. 8 Overturn Raises Complex Financial Planning and Tax Questions for Many Same-Sex Couples

The Supreme Court decision overturning DOMA is good news for same-sex couples in states that permit them to marry, according to Anna Pfaehler, a financial planner with Palisades Hudson Financial Group in Scarsdale, N.Y., and Larry Elkin, president of the firm.

But it’s very complex for gay couples elsewhere.

They comment:

If you’re legally married in your state of residence, the federal government must now recognize your marriage. Now, you can file joint federal income tax returns, for example. You also may be entitled to tax refunds or other benefits that you were unable to claim in the past. But there are limitations on the time period in which you can bring claims for such benefits — so talk to a financial, tax or legal adviser as soon as you can.

In U.S. v. Windsor, the Supreme Court struck down the Defense of Marriage Act on the narrow basis that the definition and determination of marriage is a state responsibility. Furthermore, the Court said DOMA was motivated by animus toward a class of citizens that a state (New York, in this case) was trying to protect.

This leaves a very open question about whether individual states may deny marriage to same-sex couples, as well as whether they can refuse to recognize marriages performed in other jurisdictions.

The upshot is that this will bring some valuable protection, and much-desired recognition, to same-sex couples in some places. But it probably means a long period of uncertainty for many other couples, until a host of unsettled questions is answered.

Many people have situations that are much less clear than in the case of Edith Windsor, who brought the litigation decided today. Pfaehler and Elkin said: “We do not know what today’s decision means for people in the following situations.”

1) You reside in a state that explicitly prohibits same-sex marriage but get married in a state that permits it. Must the federal government recognize your marriage? Must your state?

2) You reside and get married in a state that permits gay couples to wed, and you later move to a state that does not. Does the federal government stop recognizing your marriage? (Unlikely, since DOMA is now struck down.) Does your new state have to recognize your marriage?

3) You reside and get married in a state that permits same-sex marriage, but your spouse has business or property in a state that does not. Your partner dies without a will. You claim benefits as a surviving spouse, but the other state does not recognize your marriage.

4) The above situations apply, except that you reside in a state that has no legislation on same-sex marriage, or which permits civil unions but not marriage for gay couples.

Proposition 8 Overturn

The court’s action today dismissing the appeal of California’s Proposition 8 (in Hollingsworth v. Perry) likewise points to more litigation ahead.

Gay couples in California will once again be permitted to marry, since today’s action reinstates the federal district court decision that invalidated Proposition 8. That decision carries no legal force outside California, and has the peculiarity that California allowed same-sex marriage for a period of time before banning it.

But the federal court’s reasoning in this case rejected the legislative rationale for banning same-sex marriage on broader constitutional grounds than the court’s majority followed in Windsor. Proponents of gay marriage are likely to challenge other states’ bans in federal court. It will be years before we will know if the Supreme Court will adopt lower court reasoning that says gay couples have a constitutional right to get married.

Pfaehler, CFP^®, has closely followed and written about financial planning for same-sex couples. Elkin, CFP^®, CPA, is the author of “Financial Self-Defense for Unmarried Couples” (Currency Doubleday, 1995), which was the first comprehensive financial planning book for unmarried couples. Palisades Hudson (www.palisadeshudson.com) is a fee-only financial planning firm and investment advisor headquartered in Scarsdale, N.Y., with more than $1.2 billion under management. It has branch offices in Atlanta, Ga.; Fort Lauderdale, Fla.; and Portland, Ore.