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Tuesday, July 9, 2013

IS A REGISTERED DOMESTIC PARTNER THE SAME AS A SPOUSE?




No. A registered domestic partner is definitely not the same as a legal spouse for all purposes.


A registered domestic partnership is the California name for a civil union of two same-sex people (or two opposite sex people if one person is over the age of 62). Registered domestic partners have all the same rights and obligations that married people have under state law (basically you have to share your stuff and take care of each other) and, until recently, it was the only option for gay and lesbian couples.




Now, unless you’ve been hiding under a log for the past month, you know that there is (once again) a new game in town for homosexual domestic bliss called “marriage." Thanks to the June 26, 2013 United States Supreme Court’s ruling in Hollingsworth v. Perry, which basically killed Proposition 8 (a 2008 proposition that prohibited same-sex marriage in California), Californian homosexuals are now allowed to marry. On one hand, hallelujah!, on the other hand the decision was a disappointment because the Supreme Court did not decide that Proposition 8 was unconstitutional it simply allowed the District Court’s decision that Proposition 8 was unconstitutional to stand. The difference is that the District Court’s decision only applies to California. If the Supreme Court had flat-out declared that barring same-sex marriage was unconstitutional then every state in our beautiful union would have to start flying the rainbow flag. But it didn’t so they don’t.

So now, thanks to the long and twisted road homosexuals have had to take to get a little equality around here, in California we have two separate paths a homo-couple in love may take: domestic partnership or marriage. And you thought all you had left to decide was the color scheme.

If you go down the domestic partnership road you gain all of the rights and obligations of the California Family Code, but if you choose to wed you will have all of those right plus the benefits and burdens of being recognized as married by the federal government. Far be it from me to give out general advice about which path you should choose (here is a hint though: talk to your CPA).

Don’t know if you should get married?  I have a post for that.

As an aside, the Supreme Court’s decision in Windsor v. U.S, which forced the federal government to recognize same-sex marriages was another lost opportunity for our most high court to decide that barring same-sex marriage is unconstitutional. In that case, lesbian widow Edith Windsor had paid higher estate taxes after her wife died because their marriage was not recognized by the federal government under the Defense of Marriage Act (DOMA), even though it was recognized as a legal marriage where she lived in New York.

Because the Supreme Court did not just come out and say that homosexuals have a right to marry everywhere in our great nation, these two cases have left us with a number of legal problems. Here are two off the top of my head:

1) Since the ruling only forces the federal government to recognize legal marriages: If you marry in a state that allows same sex marriages, but you live in a state where it is illegal, how should you file your taxes?

2) What should you do if you live in a state that does not allow homosexual marriages but only allows homosexual civil unions? The federal government does not recognize civil unions as marriages. Civil unions, while they had their usefulness during a darker period of our history, are now the poster children for separate is NOT equal. Hopefully these titles will soon be retired as unnecessary relics of an embarrassing era.

9/4/2013 UPDATE
The IRS just issued regulations stating that they will recognize same sex marriages no matter where the marriage occurred and no matter where the couple currently lives.  Married couples may, but are not required to, file amended returns with certain limitations (I think three years but I’m not a CPA) so talk to your accountant and figure out the best thing for you.

For more information you might want to check the following sites:

Washington Post article on the White House memos stating that the feds will not be recognizing civil unions as marriage.

Wikipedia discussion of United States v. Windsor

California Dept. of State registration information for domestic partnerships





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