The Supreme Court’s landmark Obergefell v. Hodges decision in June was a clear victory for marriage equality, but married same-sex couples may still have to grapple with conflicting state laws that affect their taxes, health care and property.
Confusion about the financial benefits of marriage among same-sex couples is high. A new survey by Wells Fargo finds that two-thirds of same-sex couples say they don’t fully understand the monetary perks of marriage and even more, 71 percent, don’t know how laws in their states will affect their marriage, especially when it comes to retirement benefits and inheritances. Wells Fargo surveyed 1,150 lesbian, gay, bisexual, and transgender people in April before the Supreme Court ruling.
Who can blame them? Even after the ruling, many aspects of a same-sex married couple’s financial life still depend where they live, especially if they reside in the 13 states that legally banned same-sex marriage before the Supreme Court decision.
“Marriage has historically been a state-defined right,” said Alex Popovich, a wealth advisor at JP Morgan Private Bank who works with many LGBT clients. “There still are a lot of question that exist for same-sex couples residing in states that, prior to the ruling, did not recognize marriage. How long before the ruling becomes effective? Will the states adhere to the ruling, or will there be exceptions? How does the ruling affect all state-specific rights, benefits and obligations?”
While the Supreme Court allowed same-sex married couples to file joint federal tax returns, couples still may have to file separately in states that didn’t legally recognized their marriage under state law. Same-sex married couples also may be subject to state inheritance and estate taxes that don’t apply to opposite-sex married couples living in their states.
The conflict between state and federal law can even affect how a same-sex couple travels.
For example, if a same-sex married couple was visiting Texas, and one spouse was incapacitated by an accident, it’s unclear whether the other spouse would have the right to make health-care decisions for the spouse. That’s because Texas law prioritizes blood relatives and next of kin to make medical decisions.
The inconsistent application of same-sex couples’ marriage rights by states means couples should take a “belt and suspenders” approach of having up-to-date financial and health-care powers of attorney for spouses, said Tim Bresnahan, head of Northern Trust’s national LGBT and nontraditional families practice.”That’s particularly true for those who may travel to states that are traditionally less accepting of same-sex couples,” he said.
Breaking up will be harder to do, too, for same-sex married couples since divorce law varies by state. The nine community property states, which include Texas (the largest and most populous state that banned same-sex marriage before the Supreme Court ruling), will view property ownership differently than noncommunity property. “We expect there will continue to be issues for same-sex spouses to overcome, so it is important to understand the laws of your state,” Bresnahan said.
Child custody and the rights of nonbiological parents in same-sex couples may be the next legal battleground for same-sex couples. “I expect more litigation and legislation around adoption, surrogates and child care to come up,” Popovich said. “At the very least, same-sex couples should be reviewing their plans” to make sure they are prepared.