Same Sex Relationships

The rights of same-sex couples in New York are in a state of flux. Legislation allowing same-sex marriage passed the State Assembly, with public endorsement by Governor David Paterson and New York City Mayor Michael Bloomberg—however, the bill was ultimately rejected by the State Senate in late 2009.

Many legal protections, in the US and elsewhere, cannot be secured by means otherthan through marriage. As marriage between partners of the same sex is not legal in New York, it is important for these couples to know what rights and benefits are available to them.

The legal uncertainty on this issue appears most acutely for gay and lesbian couples when they are least prepared to deal with it, such as during the death or illness of a partner. There are ways to get around some of the uncertainties, such as through cohabitation agreements, wills, and health care proxies; however, some legal protections still flow from marriage alone.

Below we consider the status of gay and lesbian couples both in New York State and at the federal level.

1. New York State
a) No State Recognition of Unmarried Couples
There is no constitutional right in New York to marriage between members of the same sex. Neither is there a state law allowing civil unions, nor common-law marriage. In short, unless a marriage ceremony has taken place, the state will not confer the benefits and burdens of marriage onto a committed couple. The benefits and burdens associated with marriage have significant emotional, social and financial importance. The benefits include rights in probate (wills) and intestacy proceedings, rights to support from spouses both during the marriage and after it is dissolved, and rights to be treated as family members in obtaining insurance coverage and making health care decisions.

With these rights also come burdens, and these include liability for a spouse’s debts, for child support, and possibly for spousal maintenance. A report by the Empire State Pride Agenda Foundation and the New York City Bar Association found that there are fully 1,324 statutes and regulations in New York State that confer legal rights and duties to married people.

Some examples of the significant benefits conferred only to married individuals include:

 The right to be prioritized over children, parents, siblings, and close friends, when making health care decisions on behalf of the spouse when the latter is incapable. NY Public Health Law § 2965-2.

 The right to automatically hold real estate as tenants by the entirety, with a right of survivorship (title is transferred to him or her) should one spouse pass away. NY Estates, Powers & Trusts Law § 6-2.2; NY Real Property Law § 423 & 423-A.

 Protection against being disinherited by one’s spouse, and the right to elect to take a share of a deceased spouse’s estate against the decedent estate’s wishes. NY Estates, Powers & Trusts Law § 5-1.1 & 5-1.1-A.  The right for a child born to a married couple by artificial insemination to be deemed the legitimate and natural child of the husband and wife for all purposes, including custody, visitation rights, and child support. NY Domestic Relations Law § 73.

 The right to attend New York community colleges at the same tuition rate as New York residents, as the spouse of a military service member. NY Education Law § 6305.

 The right not to be required to testify in court about confidential communications with his or her spouse during marriage. NY Civil Practice Law and Rules §4502.

 The right to require a spouse to continue supporting his or her ex-spouse after divorce, if without such support the recipient spouse would be otherwise incapable of self-support and therefore likely to become a public charge. NY General Obligations Law §5-311.

Though unmarried couples are deprived of these benefits, there are ways to obtain some similar rights, such as through contract or will. In fact, the failure to be adequately prepared may leave same-sex couples vulnerable to the risk of having no rights recognized.

As New York Judge Richard Braun noted: Because New York State does not afford [lesbian and gay couples] a legal right to marry, they must use contractual, statutory, common law, and equitable vehicles to protect their interests in property. Here, the failure of plaintiff and defendant to have executed any documents specifying any changes that would occur in their respective rights to the properties at issue in the event of a dissolution of the relationship of plaintiff and defendant (admittedly anti-romantic, akin to a prenuptial agreement) leaves them in the position of needing to have a court determine their rights at law and in equity. [Minieri v. Knittel, 2001]

Examples of ways to protect unmarried couples’ rights include:
 Health care decisions: Competent adults can assign their partner as their health care agent, to decide about medical treatment on their behalf when they are unable to do so by themselves. New York Health Care Proxy forms and instructions are available on the Department of Health’s website.

 Real Estate: A right of survivorship (whereby one partner automatically acquires the title to property upon the other’s death) can be created through joint tenancy of a property; however, the requirements for this are strict and must be clearly expressed. NY Estates, Powers & Trusts Law § 6-2.2.

 Inheritance: A person’s estate in property may be devised by will to his or her partner, as long as the will is properly executed (including the testator’s signature at the end, attesting witnesses, and a declaration that the document is the testator’s will). NY Estates, Powers & Trusts Law § 3-1.2, 3-1.3. You may wish to seek legal advice for drafting or reviewing documents to protect you and your spouse’s rights.

b) Limited Recognition of Same-Sex Marriages from Other Jurisdictions

Though same-sex couples cannot be married in New York, there has been some positive recognition of gay and lesbian marriages legally performed in other jurisdictions.

In February 2008, the Appellate Division of the Supreme Court, Fourth Department ruled in Martinez v. County of Monroe that a Canadian same-sex marriage is entitled to recognition in New York. Following this decision, counsel to Governor Paterson’s office issued a memo advising all state government agencies to recognize same-sex marriages performed in other jurisdictions. All agency policies and regulations using terms such as “spouse,” “husband” and “wife” are to be construed in a manner that encompasses legal same-sex marriages, unless some other law expressly bars the ability to do so. This means, for example, that government agencies will recognize same-sex spouses in legal marriages for the purposes of spousal benefits under their employee health insurance plans. (Note, however, that some agencies still treat same-sex spouses differently—see “Taxes” under Section 2 below.)

This recognition has been the practice of the New York State Department of Civil Service (NYSDCS) since 2007, and of the County of Westchester (as decreed in an Executive Order by County Executive Andrew J. Spano) since 2006. Both Spano and the NYSDCS were brought to court for their policies on recognizing same-sex marriages validly performed in other states. New York’s highest court ruled in November 2009 that both had acted within their powers, and thus these policies are allowed to stand (see the Court of Appeals decision Godfrey v. Spano).

The Court carefully noted in its decision that because they were able to resolve these cases on narrower grounds, it was expressly up to the Legislature to decide whether out-of-state same-sex marriages should be fully recognized in New York. Thus, the recognition of same-sex marriages from other jurisdictions will continue to be piecemeal until a clear signal is sent by the State Legislature. Same-sex marriages can currently be performed in Connecticut, Iowa, Massachusetts, Vermont, New Hampshire and Canada. California no longer grants same-sex marriage licenses, but marriages previously legally performed there (between June 16 and November 4, 2008) are still recognized.

c) Other Developments in NY
Unmarried Same-Sex Couples May Adopt Children jointly on the basis of New York’s domestic relations statute and case law, it has been settled that a couple may adopt a child jointly, regardless of their sexual orientation or marital status.
 NY Domestic Relations Law §110: An adult unmarried person or an adult husband and his adult wife together may adopt another person.
 In re Jacob (Court of Appeals, 1995): The unmarried partner of a child's biological mother, whether heterosexual or homosexual, can become the child's second parent by means of adoption.
 In re Adoption of Carolyn B. (NY Appellate Division, Fourth Department, 2004): Two unmarried adults may adopt a child who is the biological child of neither of them, and may file the adoption petition jointly.

Sexual Orientation Non-Discrimination Act (SONDA)
The New York State Legislature passed into law the Sexual Orientation Non-Discrimination Act, which came into effect in 2003. This law protects individuals who are discriminated against on the basis of perceived or actual sexual orientation, in areas of employment, housing, public accommodations, education, credit, and civil rights. More information on SONDA can be found on the Office of the Attorney General’s website.

Domestic Partners Recognized for September 11th Compensation
Following the 9/11 attacks, the New York State Assembly and Senate unanimously passed an amendment to the Workers’ Compensation Law, making the “domestic partners” of victims of September 11th eligible for compensation benefits. This marked the first time that a “domestic partner” was recognized under New York State law.

2. Federal Law
Same-sex marriage is not recognized at the federal level, which has important financial implications for gay and lesbian couples in terms of social security and taxes. For calculated examples on the potential losses in social security and taxes, see The High Price of Being a Gay Couple in the New York Times (published October 2, 2009).

a) DOMA:
No Recognition for Same-Sex Marriage In 1996, the United States Congress adopted the federal Defense of Marriage Act (DOMA), which defines marriage as a legal union between one man and one woman for the purposes of all federal laws: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

It also provides that no state is required to recognize same-sex marriages performed in another state. No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

There is currently a movement towards repealing DOMA, and a bill called the Respect for Marriage Act was announced in September 2009; however, it is unlikely this bill will pass into law in the near future.

b) Social Security
Even if a same-sex couple is married, because of DOMA they are not entitled to certain social security benefits that flow to married people: these include spousal benefits, survivors benefits, and a flat death benefit. Under the spousal benefit, a spouse can receive up to one-half of the retired worker’s full benefit, if it is higher than his/her own. A surviving spouse can also receive the deceased spouse’s benefits, if it is higher than his/her own. Finally, there is a one-time death payment of $255 that can only be received by a spouse or a child, under certain conditions.

c) Taxes Income Tax
For federal income tax purposes, a married couple may choose to file taxes jointly or separately (with a filing status of “married filing jointly” or “married filing separately” on the tax return). On a joint return, the couple’s combined income is reported and the combined expenses deducted. On a “married filing separately” return, the couple loses some of the benefits afforded to them for a joint return, but it is still possible it could result in lower taxes. Because of DOMA a same-sex couple—even if they are married—do not have the choice of filing joint income tax returns as a married couple. (The Internal Revenue Service website states: “For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” ) Each individual must hence file income tax under the “single” status.

It is possible that filing as single status taxpayers, however, results in lower taxes for same-sex couples. Married heterosexual couples consisting of two working spouses with similar incomes often pay more in federal taxes than if they could file as singles; a married heterosexual couple pays less in taxes than singles if there is a wide disparity in income between the two. Over a lifetime a gay couple could pay thousands of dollars less in taxes than a heterosexual married couple (see NY Times article); however, this is likely outweighed by their ineligibility for marriage benefits from social security, pension income and income from a spousal I.R.A.

Finally, for the purposes of state income and estate taxes, the New York State Department of Taxation and Finance treats an individual’s marital status the same as that for federal income tax. Thus in New York, same-sex spouses must also file income taxes separately.

i. Spousal IRA
All income-earning individuals may contribute to an Individual Retirement Account (IRA), the contributions to which are generally tax deductible. In addition, married couples can contribute up to $5,000 annually to an IRA for a non-working spouse (see Spousal IRA Limit on the IRS website). Same-sex couples may not make these contributions for a stay-at-home partner; because they aren’t able to benefit from decades of compounding returns, this can result in significantly smaller retirement accounts.

Estate Tax
When a person dies, the federal government imposes a tax on the transfer of his or her estate, if it is valued at more than $3.5 million (for 2009). However, all property left to a spouse is exempt from this tax, as long as the spouse is a U.S. citizen—this is known as the ‘marital deduction’. In New York, the estate tax exemption is $1 million (for residents that died on or after 2004) and the federal marital deduction applies. However, as noted above New York also follows the federal marriage status for tax purposes; thus, same-sex spouses are not eligible for the marital deduction.