July 2014 Bar Bulletin
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July 2014 Bar Bulletin

Family and Estate Planning for Same-Sex Couples after Windsor

By Elaine G. DuCharme


(Second of two parts)

Federal Law Recognition in Non-recognition States

After Windsor, there remained significant concern and speculation about whether a legally married, same-sex couple domiciled in a non-recognition state would be recognized under federal law as married. President Obama has clarified that if a party is legally married in any jurisdiction, then all federal rights available to spouses will apply regardless of the state of domicile.

This was followed by Rev. Rul. 2013-17 from the IRS on August 29, which implements the Windsor decision for all federal tax purposes and provides that the IRS will consider same-sex couples as legally married based on the laws of the state where the marriage took place.

Imagine the chaos if this were not so. John and Bob legally marry in Washington and then move to Florida. John works for the federal government. While in Washington, Bob is entitled to health insurance and other benefits from John's work. However, when they move to Florida, their marriage is not recognized.

So, do the federal health insurance benefits stop? The analysis of eligibility for benefits would require monitoring of the domicile of the employee, updated analysis of whether the state of domicile has repealed any state DOMA or whether any state court has ruled such laws unconstitutional.

What about Social Security rights? Is the spouse entitled only to the Social Security benefits associated with Social Security contributions the spouse made while living in a state that recognized the marriage? Are the contributions on which entitlement is based to be disregarded if accrued in a state that did not recognize the marriage?

The completely unworkable nature of this problem and patchwork of state positions on gay marriage was one of the reasons specifically cited by the Obama Administration for adopting a policy that the state of domicile at the time of requesting federal benefits is not relevant; the relevant question is merely whether the couple was legally married in a state or country that allows for same-sex marriages.

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