Chapter 4 - Ongoing Legal Issues for Same-Sex Couples
Let’s begin with a real-life example of the ongoing legal issues that same-sex couples frequently encounter:

On February 2007, a lesbian couple from Washington flew to Florida to go on a cruise together. One of the members of the couple, Lisa Mari Pond, collapsed before the cruise departed. She was rushed to Jackson Memorial Hospital. Despite having a copy of the Power of Attorney, the hospital would not let Ms. Pond’s partner Janice Langbehn in to see her.

Ms. Pond’s partner and her three children were kept from Ms. Pond for the eight hours that it took for Ms. Pond to slip into a coma and die from a brain aneurysm. She died alone, without her partner of 18 years or her children. The hospital failed to provide Ms. Langbehn with any information about her partner’s care and treatment.

A lawsuit was filed against the hospital. Despite having a legal Power of Attorney, the Federal District Court dismissed the case stating that there was no relief available for the hospital’s exhibited lack of compassion.

Constant Change

Domestic PartnershipsThe marriage equality landscape is constantly changing. In less than a year, the number of states recognizing same-sex marriage has doubled. Despite this, there are still thirty states that have a constitutional amendment restricting marriage to one man and one woman, and more still that have laws against same-sex marriage but have not gone so far as to amend their state constitutions to constitutionally prohibit same-sex marriage.

The result of this patchwork of laws and conflicts between them is a list of legal issues that same-sex couples must constantly face:

  • Complexity in Rights to Federal Benefits
  • Tax Issues for Same-Sex Couples
  • Discrimination Still Exists
  • Interstate Recognition of Same-Sex Relationships
  • Considerations Before Moving to Another State
  • Specific Issues for Domestic Partnerships, Civil Unions, Committed Relationships

Complexity in Rights to Federal Benefits

Despite the Supreme Court’s June 2013 ruling against DOMA (the federal Defense of Marriage Act, which defined marriage as only between a man and a woman), complexities will persist with respect to federal benefits. Some federal benefits apply to couples based on where their marriage ceremony occurred and others are based on the state marriage laws where they reside. A couple that marries in a state that allows gay marriage but resides in a state that does not will have to carefully assess which federal benefits and responsibilities apply to them and which do not.

Hospitals Participating in Medicare or Medicaid Must Allow Equal Rights to Same-Sex Couples

As a result of the experience of the Pond-Langbehn family, and the stories of many other couples, President Obama ordered the Department of Health and Human Services to issue regulations that required any hospital participating in Medicare or Medicaid to allow gay and lesbian partners the same privileges and rights as heterosexual partners.

The Centers of Medicare and Medicaid Services (CMS) issued new rules in November 2010 requiring hospitals to respect the right of all patients to choose who may visit them while they are in hospital. In September 2011, CMS clarified that same-sex couples also have the same rights as other couples in terms of naming a representative who can make medical decisions on a patient’s behalf.

Tax Issues for Same-Sex Couples

Taxes for Same-Sex CouplesNow that the federal government is recognizing same-sex marriages in states where gay marriage is legal, like Washington State, couples in those states can file their federal tax return as a “married” couple. In states without marriage equality, same-sex couples still cannot file jointly.

Couples in state-registered domestic partnerships in any state cannot file their federal tax return as a married couple. The rules around taxes are unclear, but an IRS letter ruling takes the position that same-sex couples in a state-registered domestic partnership must do income splitting on their taxes. Additionally, most automated tax services are not programmed to handle these complications and many accountants aren’t knowledgeable about the tax complexities for same-sex couples.

For example:

  • Federal Tax Returns – Same sex couples who are state-registered domestic partners must still file as single on their federal tax return. Couples in community property states, like Washington, should talk to a tax accountant. An IRS letter ruling states same-sex couples should do income splitting. Lambda Legal has a document that explains income splitting in more detail.
  • Gift Tax – The federal exemption from taxes levied on transfers of property between a husband and wife do not apply to quasi-marriage institutions like state-registered domestic partnerships or civil unions.
  • Estate Taxes – In Washington State, same-sex couples who leave their estates to their domestic partner are not exempt from estate tax. Married couples, either straight or gay, are exempt. In states without legal same-sex marriage, no same-sex couples are exempt.

Even more tax issues exist for same-sex couples in state-registered domestic partnerships when it comes to deductions, what qualifies as taxable income, taxes on spousal support/alimony, and other variables. Couples in domestic partnerships or civil unions should seek tax advice from a tax professional knowledgeable in LBGT issues.

Discrimination Still Exists

LGBT individuals know all too well, that even though there are laws banning discrimination, domestic partnerships have existed since 2007 and marriage since December 2013 – they still experience discrimination.

Burden of Proof

Same-sex couples in Washington State may have marriage equality, but all too often they have to prove it first in order to be afforded their legal rights. For instance, same-sex couples often must document their relationship (a marriage license, power of attorney, etc.) to a hospital before they will be allowed to participate in their partner’s care. However, opposite-sex couples typically don’t have to prove they are married.

Birth Certificates

The 2009 “Everything But Marriage” law and the 2011 Uniform Parentage Act provides for a legal presumption of parentage when a child is born to a same-sex couples. This should mean that both parents should appear on the birth certificate in the hospital. Many couples experience a problem with this, especially male couples who use a surrogate.

Talking to the hospital prior to the birth of the child may help eliminate difficulties when the child is born. If a couple is unable to get a hospital to comply, they can get an amended birth certificate to list them both as the parents of the child.

Religious Organizations

Many religious organizations or officials refuse to participate in a marriage ceremony involving a same-sex couple. While this is not illegal, it is a barrier that heterosexual couples rarely have to face.

Interstate Recognition of Same-Sex Relationships

Another major hurdle experienced by couples in same-sex marriages, same-sex domestic partnerships or civil unions is the confusing nature of interstate recognition of their relationships.

For example, Oregon has an amendment that bans recognition of same-sex marriage, but Oregon recognizes domestic partnerships. This means a Washington couple who is registered in Washington but has not yet married will have their relationship recognized in Oregon. Once they marry, or the Domestic Partnership automatically converts to marriage on June 30, 2014, Oregon will no longer recognize their relationship.

The landscape of whether states legally recognize same-sex relationships and the level to which they recognize these relationships changes rapidly, making it difficult for couples travelling throughout the U.S. or internationally to know whether their legal relationship will be respected.

How to Protect Rights of Same-Sex Relationships when Travelling

Due to the existence of state DOMAs and the reality that even with marriage, some people and institutions may try to deny same-sex couples certain rights and responsibilities, the best practice for same-sex couples is to obtain legal Powers of Attorney, especially if they intend on travelling out-of-state.

Considerations Before Moving to Another State

If a married same-sex couple wishes to move to a state for work, family, or any other reason, they would need to factor into their decision whether they want to live in a state that will refuse to recognize their marriage such as Texas or Oregon, which would impact property rights, inheritance rights, and over 1,000 other rights and responsibilities.

Specific Issues for Domestic Partnerships, Civil Unions, Committed Relationships

Same-sex couples often encounter problems when interacting with those who do not understand what rights and responsibilities are conveyed through domestic partnerships and civil unions. There are stories of couples dealing with discrimination at hospitals, places of business, and even in certain government agencies, where they are denied rights because people do not understand the legal complexities of these unions.

The Windsor case and the ruling that DOMA was unconstitutional only addressed the issue of marriage. It did not address whether the federal government should recognize domestic partnerships or civil unions, which provide substantially similar rights and responsibilities as marriage. Since the Court did not address these issues and extension of federal rights and benefits hinge on “marriage,” couples in state-registered domestic partnerships and civil unions will not have the rights and responsibilities the federal government provides to married couples.

Continue to Chapter 5