Let’s Talk About DOMA: Implications for NH’s Same-Sex Couples

Yesterday, the U.S. Supreme Court made history in holding that certain provisions of DOMA were unconstitutional.  The provisions in question prohibited the federal government’s recognition of same-sex marriages.

The issue came to the Supreme Court by way of a widow who didn’t want to pay federal estate taxes on the inheritance she received from her wife. Had she been married to a man, she would have been entitled to certain tax exemptions, and she just wanted those same tax exemptions to apply to her also.  However, under DOMA, the IRS wouldn’t recognize her marriage and the resulting estate tax exemption.  The Supreme Court found that the federal government’s recognition of only some marriages that were valid under state law was unconstitutional, because it unfairly deprived same-sex couples, and their children, of all the rights, benefits and obligations of marriage under federal law.

The Court, however, left some important questions unanswered:

  • Is this finding retroactive to other same-sex couples who didn’t challenge the law?  If so, what is the procedure for same-sex couples to receive their rightful remedies?  Can individually filed tax returns be amended to married filing jointly status even though the amendment deadline has passed?  Or must such tax returns be amended?  Can the IRS impose additional taxes on same-sex couples because they should have been taxed at the higher married filing separately tax rates?  With over 1000 federal laws that deal with marital status, sorting through retroactive rights will be a highly complex issue.
  • What happens to lawfully married same-sex couples who live in a state that doesn’t recognize same-sex marriage?  For example, a couple may travel to New Hampshire, get lawfully married here, and then return home to a state that doesn’t recognize their marriage.  Will that marriage be recognized by the federal government, or will the federal government defer to the home state’s decision not to recognize the marriage?  What about couples living abroad in countries where same-sex marriage is not recognized?  What if a married couple lives apart, one in a state that recognizes same-sex marriage and one in a state that doesn’t?  What if a married couple has lived in New Hampshire for many years, but moves to a state that won’t recognize their marriage?
  • The Court confined its decision to “lawful” marriages.  This is a problem because a lot of same-sex couples have marriages that fall into a gray area between lawful and unlawful.  These gray areas often arise because the rapidly changing legal landscape of same-sex marriage has left couples in situations where their marital status is unclear.  For example, a Vermont civil union can sometimes be a bar to a subsequent marriage to a different partner, making the subsequent marriage bigamous.  And many same-sex couples, who rushed to Massachusetts to get married when same-sex marriage was first legalized there, may have provided false information regarding their intent to reside in Massachusetts–such marriages may not be the type of “lawful” marriage contemplated by the Supreme Court.
  • What about civil unions?  Registered domestic partnerships?  Are these going to be treated as marriages under federal law?

Given these ambiguities and the lack of uniform recognition of same-sex marriages, it’s still important for same-sex couples to not be complacent and to proactively protect their families through careful legal and financial planning.  And one of the most important protections for families is completing a second parent adoption.

New Hampshire lawyer Catherine Tucker