Same-Sex Marriage & Domestic Partnerships

The question of who among us has the right to marry has been a controversial issue throughout recent history.  The United States has restricted the right to marry based on age, race, and gender. In most states, minors are prohibited from marrying without their parent’s legal consent. States have also prohibited marriages between relatives. 

This article is a summary of the law of same-sex marriage as well as a review of the law of domestic partnerships and civil unions.

Same-Sex Marriage

Same-Sex Marriage Is A Legal and Recognized Right 

Same-sex marriage is currently a legally recognized right. Under the 2015 landmark case of Obergefell, the U.S. Supreme Court held that same-sex married partners have the same “rights” and “benefits” as legally married opposite-sex couples. 

The court also defined “rights” and “benefits” between same-sex married couples to include the following spousal rights:

• spousal right to make an emergency medical decision

• marital tax rights and obligations

• spousal inheritance rights 

• spousal testimonial privilege

Prior History of Same-Sex Marriage

The social, religious, and legal controversies over same-sex marriage emerged as a significant political issue in the 1980s, with strong opposition from the religious right.

Before the Supreme Court opinion in Obergefell v. Hodges, states were deeply divided on ways of defining marriage and how property rights could be legally conferred upon same-sex partners. 

State legislatures had begun to enact what is known as “defense of marriage” laws which limited marriage to relationships between a man and a woman.

In 1996, President Bill Clinton Signed The Defense of Marriage Act (DOMA)

The signing of DOMA into law came as a surprise to most progressives and a celebrated victory for conservatives and the religious right. 

However, in 2005 most of the provisions in DOMA were found to be unconstitutional and, therefore, unenforceable by the states. Specifically, the 2015 Supreme Court ruling acknowledged that same-sex marriage was a Fundamental Right and therefore was protected by Due Process and the Equal Protection Clause.

Same-Sex Marriages Federally Taxed As Married

In the Supreme Court’s landmark decision in U.S. v Windsor, the court held that the federal government was prohibited from discriminating against married same-gender couples in determining eligibility for federal benefits and protections. 

The IRS states that same-sex couples who were married under state law are considered married under the federal tax code. (See Revenue Ruling 2013-17)

Other Forms Of Partnerships

Domestic Partnerships

The law of domestic partnerships allows states to recognize certain types of domestic partnerships and determine the rights and protections afforded to them under their state law. 

Therefore, each state is free to enact its laws relating to domestic partnerships, whether they be same-gender or opposite-gender couples who live together but have elected to remain unmarried.

The Law of Domestic Partnerships Slowly Evolving 

The law of domestic partnerships is still evolving, partly because there are still no national domestic partnership laws state legislators can follow and because the political implications of enacting such laws at the state level have been met with public resistance. 

So far, the only states that have recognized domestic partnerships include the following:

• California

• Hawaii

• Maine

• New Jersey

• Nevada

• Oregon

• Washington

• Wisconsin

Registering To Become A Domestic Partnership

Official Declaration of Domestic Partnership

Most unmarried partners of the same or opposite gender have chosen to cohabitate in an unofficial capacity while jointly sharing a home and bank accounts.

In the states and municipalities that allow for domestic partnerships, partners can choose to register to become a domestic partnership which provides an official public record of the party’s intended status.

Under states like California, registered domestic partners have similar rights, protections, and benefits granted to spouses. However, filing for a domestic partnership differs significantly from filing for a marriage license.

The registration publicly records a couple’s relationship status with the state or municipality registry. For an example of a domestic partnership registration process, visit California’s Los Angeles County Domestic Registration page. 

Registering For A Domestic Partnership

Given the variety of state and municipal authorities that allow for domestic partnerships, there is a wide variety of requirements to officially register as a domestic partnership.

What is generally required to register is:

• To jointly appear at a designated state or municipal location 

• Produce official identification such as a passport, driver’s license, or  

• Fill out the domestic partnership registration form

• Include all contact information and place of employment

• Have the form notarized

• Pay a fee

Civil Unions 

The status of Civil Unions has been recognized by several states that have enacted laws protecting same-gender partnerships. 

Some of the rights and benefits afforded to civil unions include:

• Holding title to personal property under the civil union

• Holding title to real property under the civil union

• Having legally recognized survival rights in wrongful death lawsuits

• Asserting loss of consortium claims in civil tort actions

• Having the right to adopt a child under the civil union

• Right to medical benefits held by the other partner’s health insurance 

IRS Position On Domestic Partnerships And Civil Unions

Under federal law, neither registered domestic partners nor civil unions are considered a legal marriage. Therefore the IRS’s position regarding domestic partnerships and civil unions is consistent with federal law, which does not consider domestic partnerships or civil unions to be, for tax purposes, legally equivalent.  

Therefore, according to the IRS, those belonging to a domestic partnership or civil union should file under single or head of household and should not file under a married tax status, whether it be separately or jointly filed.  

Example Regarding A Dependency Deduction

Under IRS Guidelines, a taxpayer should not file as a head of household if the taxpayer’s only claimed dependent is their registered domestic or civil partner. 

If a child qualifies under IRS Code Section 152(c)) and both parents are registered domestic partners, then either parent, but not both, is allowed to claim a dependency deduction for the qualifying child.

Tax Liability For Domestic Partnerships and Civil Unions is a complicated and evolving area of the law and requires professional tax guidance. We recommend carefully reading the IRS Questions and Answers regarding domestic partnerships and civil unions.

Attorneys And Tax Accountants

Should you want to learn more or have additional questions, it is advised that you consult with a verified Divorce Attorney and Tax Accountant about your specific situation as soon as possible.