On June 24, 2011 New York became another one of only a handful of States, within our nation, to recognize the fundamental human right of same-sex couples to marry. For thousands of individuals throughout New York State this victory represents a long fought battle for equality. Moreover, its meaning resonates beyond our collective recognition of boundless love and across Interstate borders. What does that mean? As a result of New York’s Marriage Equality Act, the Domestic Relations Laws of our State have been amended to reflect the new law. These Laws make reference to the legalization of marriage as well as its undoing pursuant to New York State’s divorce statutes. Taken together, every same sex couple will want and presumably need, to understand what taking that preverbal walk down the aisle entails and the impact it may have upon their future family. One of the more important collateral effects of the Marriage Equality Act is that it does not create equality in all respects. In other words, although New York State confers all the rights and obligations of New York residency upon same sex couples, the same can not be said for our Federal Government.
The Defense of Marriage Act (“DOMA”) was enacted into federal law in 1996 under the Clinton Administration. The Act recognizes marriage as being between a man and a woman. As a result, the same benefits conferred to same sex couples in New York State are not recognized under the Federal law. In practical terms, and by way of example, a same sex married couple will not be permitted to file a joint Federal Tax Return, although they can file a joint State Tax Return in New York. Similarly, a same sex married couple will not be entitled to survivor benefits under the Federal Social Security system.
Nor can the same be said of the thirty five States which do not give full faith and credit to New York’s law and which may refuse to recognize same sex marriages, together with those rights conferred to their spouses, for couples who have relocated to those States. Those thirty five States may decline to enforce a New York marriage contract, together with such rights as the right of election to a spouse’s estate, or the right to make health care decisions for a spouse who is incapacitated and does not have a health care proxy. Accordingly, and by way of example, “snow birds” residing in Florida six months out of the year may eventually find themselves in a legal conundrum. With progress and equality come responsibility and the need to gain information and protection. There are a myriad of additional issues that same sex partners will need to become educated about. We are here to assist in that education and look forward to travelling down this path together.