Chapter 3 Lgbt Relationships in a Post-obergefell World: Marriage, Civil Unions, and Domestic Par Tnerships

• Library: Estate Planning for Same-Sex Couples (ABA) (2015 Ed.)

Chapter 3 LGBT Relationships in a Post-Obergefell World: Marriage, Civil Unions, and Domestic Par tnerships

While the U.S. Supreme Court decision in United States v. Windsor¹ was nothing short of earth-shattering for the LGBT community, the Court's June 26, 2015, decision in Obergefell v. Hodges was a legal tsunami.²

While the Court limited its decision to declaring unconstitutional only section 3 of the Defense of Marriage Act (DOMA), that opened the door to over 1,400 federal benefits. Among them: equal tax treatment by the IRS, access to the marital exemption, some Veterans Affairs (VA) benefits, spousal health insurance, federal employee benefits for same-sex spouses, and dependent's benefits for military spouses.

Most of all, married lesbian and gay couples now had their marriages recognized by the U.S. government. Five justices on the nation's highest court recognized the value in extending federal recognition to those couples.

Ten years after the Massachusetts Supreme Judicial Court issued its decision in Goodridge v. Department of Public Health³ and Massachusetts became the first marriage equality state, there are 38 marriage equality jurisdictions.

In addition to marriage, lesbian and gay people can serve openly in the U.S. military. The Department of Defense is considering whether to abandon the prohibition on allowing transgender individuals to serve in the U.S. military.

The Windsor decision only addressed the issue of the federal government recognizing same-sex marriages. It did not address section 2 of DOMA, which permits individual states to refuse recognition of same-sex marriage. That section is now under attack in federal courts throughout the country.

The Windsor decision is silent on whether civil unions and domestic partnerships are equal to marriage for purposes of federal benefits.

Twenty-nine states continue to deny full rights to lesbian and gay married couples. Most states do not provide legal protections to LGBT persons in employment, public benefits, or public accommodations. The Employment Non-Discrimination Act (ENDA) and its earlier iterations have been languishing in Congress since 1974. That situation will not change now that the Republicans have taken control of Congress.

A. Where We Stand Now

Following the Obergefell decision, every state in the country is a marriage equality state. There are no exceptions—even among those being dragged kicking and screaming into the fold.

Jurisdictions Recognizing Civil Unions or Domestic Partnerships

California*

District of Columbia*

(There are some restrictions established by state law.)

Foreign Jurisdictions Recognizing Same-Sex Marriages

The Netherlands (2000)

Belgium (2003)

Brazil (2004)

Canada (2005)

Spain (2005)

South Africa (2006)

Norway (2009)

Sweden (2009)

Argentina (2010)

Mexico (DF, QR 2010)

Iceland (2010)

Portugal (2010)

Denmark (2012)

France (2013)

New Zealand (2013)

United Kingdom (England & Wales 2014)

Uruguay (2013)

Luxembourg (2015)

Scotland (2014)

Israel (recognizes same-sex marriages from other countries)

Italy (10 cities)

Ireland (2015, first country to adopt marriage equality by popular vote)

Foreign Countries Recognizing Same-Sex Civil Unions and Registered Partnerships

Andorra

Australia

Austria

Colombia

Costa Rica

Croatia

Czech Republic

Ecuador

Finland

Germany

Greenland

Hungary

Ireland

Isle of Man

Jersey

Lichtenstein

Luxembourg

Slovenia

Switzerland

Venezuela

Foreign Countries Recognizing Unregistered Cohabitation

Australia

Croatia

Israel

San Marino

B. Federal Recognition of Same-Sex Marriage

The U.S. government is recognizing same-sex marriage based on the state of celebration. That means a married lesbian or gay couple will be eligible for most federal benefits regardless of where they live.

Now that marriage equality has been clearly established in the United States, married same-sex couples enjoy the same rights, privileges, and obligations as all married couples.

There will continue to be uncertainty concerning whether other state laws are applied equally to LGBT individuals, couples, and their families. Marriage is just one part of the puzzle. Many issues remain unresolved. The federal laws, however, will be applied equally without consideration of the individual's state of residence.

Clients must continue to be made aware of how moving from one state to another can affect their legal rights.

C. Automatic Upgrades

Some marriage equality states that recognized civil unions or domestic partnerships are automatically upgrading to marriage. Washington State, for example, automatically upgraded all domestic partnerships to marriage on July 1, 2014.

Another aspect of Washington law involves recognition of out-of-state civil unions and domestic partnerships. Couples moving into Washington will have their relationships recognized as marriages for one year. If the couple does not marry within that year, their formal relationship will cease to exist and they will have no marital rights under Washington law. However, that does not mean the civil union or domestic partnership is formally terminated. Other states may continue to recognize that formal designation. The couple should marry or formally terminate their relationship. The potential for nightmare is considerable.

Other states require the couple to take official action to move from a civil union to domestic...