My law practice has a special commitment to protecting same-sex couples and trying to equalize their relationships in the eyes of the law to the extent possible in the absence of marriage equality, so naturally I have given a lot of thought recently to what this legal sea change will mean for my New York clients and all same-sex couples in the state.
For same-sex couples who live in New York and who choose to get married, they will be treated as equals to their heterosexual counterparts under the laws of New York. However, thanks to the federal Defense of Marriage Act (DOMA), these same marriages will not be recognized in the vast majority of states. Until DOMA is repealed or otherwise removed from the books, married same-sex New Yorkers will be treated as unmarried in most other states, and will not be afforded the benefits and rights that heterosexual married New Yorkers will receive in those same states. Therefore, it remains very important that any same-sex married New Yorkers who leave New York, whether permanently or just for a weekend getaway, have certain legal documents that will hold up and be honored in other states.
For example, it has always been important for a committed couple, whether heterosexual or homosexual, married or unmarried, to have health care proxies and powers of attorney, which authorize one partner to make health care decisions and conduct business transactions for the other partner should the first partner become unable to. In the absence of these documents, a court needs decide who is able to make such decisions for the incapacitated person. For married couples, a court will often (but by no means always) decide that the spouse with capacity has the power to make decisions for the incapacitated spouse. For married (or unmarried) same-sex couples, however, courts in most states won’t deem the relationship as being on par with the relationship of a heterosexual married couple. Nevertheless, with a health care proxy and power of attorney, whoever the incapacitated person names in those documents (even a same-sex partner) will automatically have the power to make those decisions, regardless of how the law, or a particular judge, views that couple’s relationship.
Another thing that unfortunately won’t change for same-sex married New Yorkers is their treatment under federal tax law, in particular with respect to the estate and gift taxes. My earlier post highlighted some positive changes that marriage equality will bring to same-sex couples when it comes to state taxes, but under federal law same-sex married New Yorkers will still be treated as single. This can have terrible consequences for same-sex couples who fail to plan accordingly.
In short, marriage equality in New York is a huge legal victory, and arguably an even greater moral victory. Within New York’s borders, same-sex married people will now enjoy the hundreds of benefits that have been granted to heterosexual married couples for ages. But outside the state’s borders same-sex married New Yorkers still face inequality and potential heartache without taking additional steps to protect themselves.
As I write this I can’t help but feel like I’m being a bit of a gloomy Gus on a day that calls for celebration. And I don’t mean to. I’m very happy. Ten years ago I would have scoffed at the notion that same-sex couples would be allowed to legally marry in New York, or anywhere else for that matter. Now, same-sex couples can marry in several states, including the one I call home. But that doesn’t change the reality that there is still a ways to go before same-sex couples enjoy truly equal status in the eyes of the law, even within the state of New York.
So let’s rejoice at this exciting victory--but never lose sight of the work still to be done, or waver in our commitment to making sure same-sex couples everywhere will one day feel as happy as we New Yorkers feel today.