Same Sex Marriage after Windsor

Is Windsor a step on the stop to same sex marriage in Pennsylvania?

UPDATE: A federal judge struck down Pennsylvania’s law prohibiting same-sex marriage saying it violated the U.S. Constitution.  Former Pennsylvania Governor Tom Corbett did not appeal. Read more here.

Will 2014 be the year for same-sex marriage in Pennsylvania?  Pennsylvania is the only northeast state that continues to ban gay marriage.  This year, several lawsuits are pending that challenge the legitimacy and constitutionality of the Commonwealth’s laws.  As of now, however, same sex couples in Pennsylvania are stuck in a holding pattern.

The Pennsylvania Lawyer Magazine, a publication by the Pennsylvania Bar Association (PBA), recently ran an article by James Lange entitled “The Demise of Federal DOMA:  New Financial Planning Strategies for Pennsylvania Same-Sex Couples.”  (A note about the link:  You may need to adjust your browser settings to accommodate the formatting of the article.)  Lange is an estate-planning lawyer based in Pittsburgh who started the first financial planning website for same-sex couples.

While the article in its entirety is worth a read, we wanted to highlight some of the practical tips shared by the author.  Additional advice can be found on Pages 6 and 7 of the article. These tips are not a one-size-fits-all answer to the issues facing same-sex couples; however, they spotlight some practical considerations for same-sex couples.

1. Same-sex couples who wish to wed should travel to a state where same-sex marriage is legal and marry there.  With the repeal of the Defense of Marriage Act (DOMA) by the United States Supreme Court in U.S. v. Windsor, all married couples qualify for certain benefits previously reserved only for opposite-sex married people.  As of the writing of this post, Pennsylvania will not extend benefits to same-sex couples, but there are other advantages.  If you plan to travel to a different state to marry, be sure to research that state’s laws about marriage licenses and required paperwork.
2. Be aware that legally married same-sex couples will be treated as married for all federal tax purposes, regardless of state of residency.
3. Prepare or revise your estate planning documents so that the language is both compliant with current laws and flexible in the event that Pennsylvania legalizes same-sex marriage.  Married people receive certain protections in the event of a death of a spouse, and having the right language in your will and trust documents will protect the surviving spouse.  We would be happy to refer you to an estate planning attorney who can assist with these needs.
4. When one spouse dies, the surviving spouse is exempt from paying transfer tax when s/he inherits the estate.  As long as Pennsylvania bans same-sex marriage, even same-sex couples with adequate estate planning documents will need to pay a transfer tax.  Lange recommends that couples purchase life insurance to cover the cost of this tax so that it does not create a burden for the surviving spouse.

Although same-sex couples remain unable to marry (or to divorce) in Pennsylvania today, there are still some ways in which we are able to assist you.  For instance, you are able to adopt children together.  Call Attorney Alexis Miloszewski or Attorney Jessica Smith at (717) 883-5671 or email us at FamilyLaw@jsdc.com to discuss your rights or if you would like further advice on any of the topics addressed above.