On June 24, 2011, New York became the seventh jurisdiction (six states and Washington, DC) to recognize same-sex marriages. Thirty-eight states do not recognize same-sex marriages. Five states recognize civil unions. The federal government is prohibited from recognizing same-sex marriages under the Defense of Marriage Act (DOMA). DOMA, which was passed by Congress and signed by President Clinton in 1996, prohibits federal recognition of same-sex marriages. Both the First and Second Circuit Court of appeals have struck down a provision of the law denying federal benefits, like Social Security benefits or the ability to file joint tax returns, to same-sex couples legally married. Because of these lower court rulings, DOMA has been declared unconstitutional in some regions of the country but not others. The United States Supreme Court recently announced that it will review the Second Circuit decision.
In the meantime, while all couples should have estate planning documents in place, it is even more important for same-sex couples to plan accordingly. If a same-sex couple married in New York should move to a state that does not recognize their marriage, they will not be able to take advantage of certain rights determined under local law, like inheritance under intestacy and the spousal right of election. Further, issues involving life insurance, the creation and funding of trusts, choice of applicable law and probate venue, gift tax issues arising from jointly held assets, powers of attorney, health care proxies and identifying beneficiaries and fiduciaries are significantly different for same-sex couples. A qualified attorney and counselor experienced in advising same-sex couples can help with the estate planning process.