What states recognize same-sex marriage?

All of them.  On June 24, 2011, New York became the sixth and most populous state legalizing same-sex marriage, joining Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont, as well as the District of Columbia. Prior to that time, other states had offered a civil union or domestic partnership, or had a patchwork of case-law or other statutory laws granting some but not all benefits to same-sex couples. While civil unions and domestic partnerships offered some benefits in those states, it did not rise to the level of “marriage”. At that point in time, there was a wild inconsistency among the states, throwing the state of the situation into chaos, particularly because of the Defense of Marriage Act (“DOMA”), enacted during the Clinton administration, which effectively amended the “full faith and credit” clause of the U.S. Constitution, requiring that each state recognize the validity of another’s state’s laws. 

That all changed in the landmark civil rights case of U.S. v. Windsor, a case that was heard and decided by the United States Supreme Court in 2013.   The Windsor Court held that restricting the U.S. Federal interpretation of “marriage” and “spouse” to apply only to opposite-sex unions under Section 3 of DOMA was unconstitutional under the Due Process Clause of the Fifth Amendment.   

The end result is that under current law, same-sex couples can marry in any state in the U.S., and their marriage must be recognized in any state and for the purpose of federal or state benefits. 

My partner just passed away, and I'm concerned about our joint assets and about the assets he left to me in their will. What should I do?

It’s hard during such a trying and difficult time to think about advocating for your rights and interest against someone that might oppose you.  Fortunately, your partner left a Will.  If that will left all of his assets to you, then the point should be moot:  whether the title to the assets pass to you by reason of “rights of survivorship” in the joint account or through the “probate” process under the Will, you will ultimately receive the assets.

A different problem might arise if your partner had not left a Will; if the Will does not leave all the assets to you; or if he left a Will but for some reason it is not admitted to probate.  In any of those situations, your partner’s nearest blood relatives – known as “distributees” or more commonly referred to as “natural heirs” – might challenge your entitlement to receive the remaining assets in the joint account.  Unfortunately, your domestic partnership will not give you standing as a “distributee”, which you would be considered had you been married and would then be considered as the surviving spouse.    

Your first step should be to seek out counsel that is experienced in handling trusts and estates issues. The right attorney will be your trusted ally and advisor to help you navigate the legal waters and support you.

My partner died without a will and his blood relatives are contesting my right to inherit from his estate. What should I do?

Unfortunately, when you die without a will, the State writes one for you. This is called intestacy. The intestate scheme in New York provides for a “spouse” to inherit from a deceased spouse in intestacy; however, a domestic partner is not included in the definition of a “spouse” under the intestate statute, whether or not you are a same-sex or hetero-sexual couple.

Although before the enactment of New York’s Marriage Equality Act in 2011 and the Windsor case in 2013 there was some favorable and progressive case law that might have permitted same-sex domestic partners some protection, that is not likely to continue in light of the fact that since those dates, same-sex couples could have gotten married, but chose not to. In Estate of Ranfle, Surrogate Judge Glenn took a very progressive view and held that a same-sex partner was entitled to receive notice of his partner-decedent’s estate proceeding, effectively holding that he was a distribute under New York law, which is not specifically incorporated into the statute. However, there were no guarantees that this would be the result, and contrary case law from another New York State Surrogate Court held differently. Now, as a result of the Marriage Equality Act, same-sex spouses are deemed “spouses” under the intestate statute and all other areas of New York law where marital status is a factor.

The most important thing to do is to consult with an estate planning attorney to determine your rights for your particular situation, and whether the facts and circumstances of your situation warrant pursuing an action to enforce your rights in the estate.

Same-sex and opposite-sex couples alike (and single individuals!) should note that much of the difficulty could have been prevented if the decedent had validly executed a will. With limited exceptions, every individual may distribute his or her assets in a will to whomever they choose. You can leave your assets to individuals, to close or distant family members, or to none of your family members. When you fail to implement an estate plan, you leave yourself and your loved ones completely unprotected.

My partner and I were legally married in New York on July 30, 2011. Does the Federal Government recognize our same-sex marriage?

YES.  Since the U.S. Supreme Court decided the U.S. v. Windsor case in 2013, Section 3 of the Defense of Marriage Act (DOMA) was held unconstitutional under the Due Process Clause of the Fifth Amendment (which guarantees equal protection).  Prior to the landmark Windsor decision, the Federal Government did not extend federal benefits to same-sex couples.  Under current law, all married couples, same-sex or opposite-sex, are entitled to the same protections under Federal law such as the estate tax marital deduction, Social Security benefits, and the like. 

If I want transfer assets to my spouse, will I be taxed in excess of what a heterosexual married couple would be?

Not anymore.  The federal government treats heterosexual married couples as a single economic unit. Heterosexual married couples enjoy an “unlimited marital deduction” during life and at death. That means that heterosexual spouses can make unlimited transfers to each other without incurring gift tax, and may leave an unlimited amount to their partner at death, even if that amount exceeds the federal estate tax exemption at the time of death. Same-sex marriages do not enjoy this benefit. If you transfer more than $13,000 to your partner (for 2010; the amount changes every year), with limited exceptions to pay for medical or education costs, you will  have to file a gift tax return and pay a gift tax. You may elect to use your lifetime gift exemption of $1 million which is afforded to every individual, regardless of marital status, however, that exemption can be used up very quickly over time. 

What are some of the issues that face transgender couples and individuals in the current political environment?

Historically, from the Stonewall riots in 1969, to the New York v. Onofre case that legalized same-sex sexual activity between consenting adults in 1980, to becoming the sixth state to both recognize and perform same-sex marriage in 2011, New York has generally been very progressive in regard to lesbian, gay, bisexual and transgender rights.  Since 2003, New York has afforded protection from discrimination based on sexual orientation, and in October 2015 expanded those discrimination protections to gender identity and expression.

Transgender issues have only recently come to the forefront of the national attention with the great “bathroom debate” that attracts the headlines, and the law continues to evolve as these issues arise.  Some of these issues are:

  • Gender reassignment:  Although there is no specific statute memorializing the practice, New York issues new birth certificates to individuals born in New York State who have undergone sex reassignment surgery.  However, since 2014 New York State and New York City do not require genital reconstruction surgery to change or obtain a new birth certificate. 
  • Hate Crime Laws: The Hate Crime Law signed by Governor Pataki on July 11, 2000 imposed harsher sentences on criminals in New York who target their victims on the basis of sexual orientation, race, religion, or age, but does not specifically protect gender identity as distinguished from sexual orientation.  
  • Conversion Therapy: Despite two bills that had a significant bipartisan majority in the Assembly that would have prohibited health care providers from trying to change the sexual orientation and/or gender identity of minors, both bills failed to pass the New York State Senate.  Governor Cuomo announced a series of regulations on February 6, 2016 that would ban public and private health care insurers from covering the practice of conversion therapy in the State and prohibit mental health facilities from conducting the practice on minors. 
  • Education: The NYC Department of Education issued the “Transgender and Gender NonConforming Student Guidelines” on March 1, 2017  reiterating its policy to maintain a safe and supportive school free from bullying or discrimination on a variety of areas, including gender, gender identity, gender expression and sexual orientation.  Among other thing, the Guidelines mandate that “Transgender and gender nonconforming students must be provided access to [restrooms and locker rooms] consistent with their gender identity consistently asserted at school.” 

New York City affords its own specific protections in addition to those offered at the State level.  In 2002 the New York City Council passed the Transgender Rights Bill to ensure protection for people whose “gender and self-image do not fully accord with the legal sex assigned to them at birth.”  The

Outside of New York State, the individual states widely vary in their approach to these issues.  On a national level, the White House recently revoked an Executive Order that had previously provided protection to transgender individuals who sought to use a bathroom reflecting their gender identity rather than their biological gender at birth.  This paved the way for individual states to pass laws preventing them from doing so.  This is a rapidly evolving area.  For the most up to date information please visit our blog posts

What are some of the legal issues facing polyamorists?

Polyamory (literally “multiple loves”) does not have one set definition, but it can take the form of a group of three or more consenting adults who are monogamous within the group.  From a legal standpoint, Polyamory presents a hybrid of issues that arise with unmarried couples akin to what the state of the law was prior to 2013. 

Most laws that impact relationships are based on the assumption that only two people are involved in the legally binding dynamic.  For example, only two people can be legally married to the other, same-sex or not.  From a legal standpoint, “polyamory” is a different way of stating “bigamy,” which remains illegal and in some states is even criminally prohibited.  Some of the legal issues facing those in a committed polyamorist relationship are: 

  • Custody: Generally only two people can have legal custody of children.  Even if two of the people in the polyamorist relationship are the biological parents of a child, there is no legal mechanism for adding a third parent through adoption or placement on a birth certificate (which only has room for two parents).  Any rights, obligations, or protections to the third, fourth, or fifth parent would need to be accomplished by contract among the parties, each of whom would need to be represented by separate counsel. 
  • Adultery / Bigamy: Fun fact:  Adultery remains illegal in the State of New York.  Section 255.17 of the New York State penal law states “A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.”  Adultery is a class B misdemeanor that is punishable by up to 90 days in jail or a $500 fine.  The law took effect on September 1, 1907.  According to one blog, only 13 people have been charged with adultery since 1972 and only 5 were convicted of the crime, usually in combination with some other charge.  The charge is rarely if ever prosecuted because of a lack of resources to be devoted to it.  Yet, in the hands of an administration focused on penalizing these types of relationships, the existence of this law could be of concern.
  • Housing:  Many municipalities, local jurisdictions, and cities restrict the number of unrelated adults living in one household, whether driven by a desire to minimize the existence of “houses of ill repute” or overcrowded dwellings occupied by immigrants, legal or not.  As with bigamy laws, the existence of these legal housing restrictions can present limitations and exposure to polyamorous couples residing together if targeted by the landlord. 

What are some of the issues that unmarried couples must consider when it comes to life insurance?

Unmarried couples have additional issues to consider when evaluating life insurance policies: income replacement, tax liabilities, and above all, the titling of policies, which can result in tax liabilities for the beneficiary.  Remember that an unmarried partner who is not a “surviving spouse” is not entitled to the unlimited marital deduction on the estate of the first to die.  Each person is currently afforded a $5.49 million exemption from federal estate tax (as of March 20, 2017) and a $5.25 million exemption from New York State tax (from April 1, 2017 through January 1, 2019, at which point it will equal the federal estate tax exemption).  If a decedent’s gross estate exceeds those exemptions, and the excess is left to a non-spouse, the marital deduction would not apply and an estate tax would be owed at the death of the first spouse.  Unmarried couples are not afforded that option. 

Regardless, all unmarried individuals must be careful when purchasing life insurance to ensure that it meets their needs. Most people do not realize that while life insurance is a non-probate asset and therefore does not pass through your estate, it is taxable. With the federal estate tax exemption returning to $1 million at a 55% tax rate in 2011, many people do not realize that most the life insurance benefit to their beneficiary will be eroded by the estate tax liability that accompanies it. There are methods to assist with the estate tax impact on life insurance, such as Irrevocable Life Insurance Trusts (ILIT), that you should discuss with your estate attorney to consider whether it is right for your situation.

What is Joint Tenants with Rights of Survivorship (JTWROS)

JWTROS is a specific type of joint ownership that ensures the surviving partner will be named sole owner of remaining funds upon the death of the first partner.  Due to several complex taxation rules, it’s important that joint owners using the JWTROS designation keep detailed records.  Otherwise, the IRS may attempt to tax jointly held property in both the estate of the deceased spouse and at the death of the surviving spouse.

What are some other alternative strategies for joint ownership?

Some of the other strategies available to same-sex couples include a Revocable Living trust, Durable Power of Attorney, or a Transfer-on-Death. Please contact us at info@besunderlaw.com for further information.

If my partner passes away, do I automatically receive a tax-free rollover of his IRA account into my own?

No. Again, while a surviving spouse is entitled to take an IRA into a spousal IRA rollover, a non-spouse beneficiary has limited recourse. Keep in mind that for heterosexual or same-sex married couples, all distributions remain income taxable regardless of status. Please consult an estate planning attorney on this and other issues.