Thousands of gay couples will marry in California during the
upcoming months, but when it comes to the law, not all marriages are
created equal.
Same-sex married couples can expect many of the same marital rights as
heterosexual couples under state law. But things will be different if
they end up in bankruptcy court, take a leave from work or own a
vacation home out of state. In those areas, federal law comes into
play, and the federal government does not recognize marriages between
lesbians or gay men.
For a look at some of the circumstances that may come in life and
marriage, and how they apply to same-sex couples under current law.
1. TAX BREAKS
There will be more paperwork, but same-sex couples won't get the same tax breaks heterosexual couples enjoy.
Tax codes generally favor married couples and families. But while
same-sex married couples can file their state taxes jointly, they can't
do so with federal taxes.
In a strange twist, many same-sex couples will have to figure their
federal taxes twice. That's because they need to know their combined
adjusted gross income for their state tax form, but the only way to
calculate that number is to fill out a federal form as if they were
married. Then they have to throw that form away and file federal taxes
separately.
2. WHEN A MARRIAGE SOURS
Next week, it will be easy for gay couples to find someone to declare them married until death do


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they part. If the vows don't work out, divorcing could be trickier if they live or move outside the state.
While there are no residency requirements to marry in California, you
must establish residency to be divorced - by living in California for
at least six months, three of them in the county where you would want
to file for divorce. That sets up the possibility that a couple from
Nevada that simply visited here to be married would have to move here
for a half-year to end the marriage.
3. DEATH
When the ultimate parting occurs, married same-sex people can inherit a
spouse's property without paying hefty inheritance taxes, just like any
married couple. They should, however, draw up a will. That's because,
unlike married heterosexual couples, they could face problems if they
live or travel out of state, or own property outside California.
"If there's property located in another state and no will or trust
giving it to the surviving gay or lesbian spouse, there could be a
legal fight if the blood relatives argue that the marriage is not
recognized in that state and therefore they get the property," said
Jennifer Pizer, senior counsel for Lambda Legal, who was part of the
legal team that represented the 14 same-sex couples involved in the
state Supreme Court case.
When a spouse dies, the other partner of the same-sex couple will not
receive Social Security survivor benefits, which are granted to
heterosexual couples.
4. IMMIGRATION
Marriages between a man and a woman are recognized by the federal
government, so a foreign-born spouse in an opposite-sex marriage has
the right to apply for U.S. citizenship. That same right does not
extend to same-sex couples. One spouse cannot sponsor a same-sex
partner to grant immigration status.
"So if you're a binational couple, you really need to speak to an
attorney," said Melanie Rowen, staff attorney for the Center for
Lesbian Rights, which argued the landmark case before the California
Supreme Court.
5. CHILDREN
If a child is born into a legal relationship, whether a marriage or a
registered domestic partnership, California law assumes both adults are
legal parents to that child.
But Pizer and others recommend that same-sex parents obtain judgments
from a court proving that each adult is the legal parent so they won't
have any problems in other states.
"If you have an adoption judgment, other states should respect it," she
said. "It is entitled to recognition in all 50 states."
6. PAYING THE BILLS
Bankruptcy law, a federal law, says that if you declare bankruptcy as a
couple, you can retain enough assets to support both spouses. But you
won't be able to declare bankruptcy as a couple if you're a same-sex
couple, so you can't get the protection.
That means state law governs, and state law says you're responsible for
each other's debts. So, Pizer said, it is possible that all of your
assets could be taken to pay off your spouse's debts.
7. FAMILY LEAVE
An employer cannot fire a worker who requests a six-week unpaid medical
leave to care for a spouse or child. However, since the family leave
act is a federal law, this does not apply to gay couples.
"You can be at home caring for your very sick same-sex husband or wife and your boss can fire you," Pizer said.
8. IN SICKNESS AND IN HEALTH
Some employers, especially in Silicon Valley, already offer health insurance coverage to registered domestic partners.
More companies are expected to offer it now that same-sex marriage is
legal in California. However, a company could claim its headquarters is
in a state that does not recognize same-sex marriage and deny benefits
to a same-sex spouse. Federal law often limits employees' ability to
challenge such different treatment.
But "one of the most unfair tax treatments" by the IRS is when a
same-sex spouse is covered by the other's health insurance: The IRS
taxes the health benefits as income, but does not for heterosexual
spouses, said Brian Chase, senior staff attorney with Lambda Legal.
Same-sex spouses also will be unable to sign up for COBRA
post-employment continuation insurance if a spouse leaves a company -
unless the company volunteers to offer it. The program is federal, so
employers are not required to offer the option.
9. CRISIS SITUATIONS
In California, same-sex spouses will now have the same rights as
opposite-sex spouses in medical emergencies. A spouse, for example,
will be able to visit the love of his or her life in intensive care and
have the authority to make life-or-death decisions if the partner is
too ill to decide.
But, again, if the couple are traveling in a state that does not
recognize gay marriages or domestic partnerships, they could be denied
those rights.
In this situation, like many, it helps to also be registered as
domestic partners in California so that states like Washington and
Oregon, which recognize domestic partnerships, will grant the same
rights that California does. Especially for those who travel a lot,
experts recommend that same-sex couples who marry also apply to have a
California registered domestic partnership.
10. ON THE ROAD
Same-sex couples traveling out of state should carry copies of their
marriage certificate, domestic partnership registration, a health care
proxy that authorizes each of spouse to speak for the other and, if
they have children, copies of documents that show both adults are
parents.
As Pizer put it, "Pack your toothbrush and take your documents."