The concern of whether marital relationship rights must be given equally to everybody is, inexplicably, an on-going debate around the country. Complicating the conversation is the fact laws are applied differently from state to state, which federal and state law problem at numerous points. As of the writing of this post, lesbian and gay couples who are legitimately wed under state laws are nonetheless rejected federal benefits since of the so-called “Defense of Marriage Act” (DOMA).
For this reason, it is necessary to understand which rights marriage typically confers, and exactly how these rights differ between state law and federal law. This understanding could allow both gay and single heterosexual couples to protect their familys.
Many gay and lesbian couples attempt to use premarital agreements and estate planning approaches to conquer some of the federal inequities. This can be efficient to an extent, but the use of wills, powers of attorney, advanced health care directives, and cohabitation agreements just cannot deal with all the troubles created by DOMA. For instance, these approaches do absolutely nothing for lesbian and gay couples who want to keep their non-citizen spouse or partner in the US and avoid deportation. The estate planning alternatives are little comfort to a family torn apart by immigration policy.
The following is a highlight of many of the Rights and Responsibilities afforded to California married couples and California Registered Domestic Partners (RDPs)
1. Joint parental rights of children if born during the marriage or RDP
2. Joint adoption
3. Joint Insurance Plans
4. Status as “next-of-kin” for hospital visits and medical decisions
5. Bereavement or sick leave to care for partner or children
6. Right to make a decision about the disposal of loved ones remains
7. Crime victims recovery benefits
8. Standing to sue for wrongful death or for “loss of consortium”
9. Wrongful death benefits for surviving partner and children
10. Welfare and public assistance
11. Domestic violence protection orders
12. Judicial protections and immunity—testimonial privilege in court proceedings
13. Automatic inheritance in the absence of a will (or in the event that a will is invalidated)
14. Filing of joint state income tax returns
15. Testimonial privilege in state court proceedings
16. Spousal protection from property tax increase upon the death of a co-owner spouse
Here is a list of some of the most important Federal Rights & Responsibilities of Marriage, which are denied to same-sex couples because of DOMA.
1. Immigration and residency for spouses from other countries
2. Crime victims recovery benefits
3. Judicial protections and immunity in federal court
4. Joint filing of bankruptcy petitions
5. Spousal veterans benefits
6. Social Security benefits
7. Medicare benefits
8. Joint filing of federal tax returns
9. Income tax deductions, credits, rates exemption and estimates
10. Deferred Compensation for pension and IRAs
11. Estate and gift tax benefits (there are substantial estate tax benefits to marriage)
12. Medical care for survivors and dependents of certain veterans
Our office regularly advises clients on how to protect themselves and their families, whether or not they decide to marry. If you have any questions about your rights in the light of DOMA or other federal statues, you should contact a qualified family attorney. We’re happy to help.
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