Legal realities of same-sex marriages now being examined

By Sadowski, Michael
Proquest LLC


Same-sex couples who have tied the knot must deal with a host of new legal and financial issues now that they can be married in Pennsylvania.

As same-sex couples lined up at courthouses across the state to be married after the May 20 federal court ruling lifting the ban on same-sex marriage, estate planners pointed out the ruling's trickiness since it isn't applicable in states where same-sex marriage still isn't legal.

That causes a dilemma when a same-sex married couple in Pennsylvania moves to another state where a ban still remains or even travels to a state where samesex marriage is illegal.

"Say a same-sex couple is traveling to Florida, and they were married in Pennsylvania," said Drew Horwitz, a vice president and wealth planner at Wilmington Trust Co.'sHarrisburg office. "They're with their son, and one of the couple is the genetic father of that son. Something happens, and the genetic dad is taken off to jail. By law, that child could be taken away from the parents, unless it specifically states somewhere there is joint custody. Those are the kinds of things that need to be spelled out in an estate."

Even at the federal level, different rules and laws apply to same-sex married couples, Horwitz said. Receiving some federal benefits depends on your place of celebration, while others depend on place of residency.

Horwitz said the Social Security Administration and the Department of Veterans Affairs both go by place of residency. So if a same-sex married couple moves to a state where the marriage isn't recognized, and one person dies, the other would not be eligible to receive spousal Social Security benefits.

"It causes a lot of things (in the estate) to be rewritten," said Heidi Duckworth, a financial adviser for Wells Fargo and Co. in Lancaster.

One of the biggest benefits, she said, is that same-sex married couples now don't have to deal with inheritance tax in Pennsylvania.

The 15 percent inheritance tax is waived only for spouses, she said. Even if a couple had lived in a home for decades, when one of the couple died, the survivor was not considered a spouse and therefore was subject to the tax - same-sex or not.

"I've heard horror stories about people losing their house because they couldn't pay the inheritance tax, where if they were married, it wouldn't be an issue," Duckworth said. "Pennsylvania is not a common-law state. No matter how long you're living together, you're not considered married. Now if they're married, (same-sex couples) have the same rights as couples of the opposite sex."

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Same-sex couples legally married in one state (or country) but living in Pennsylvania could have some tax benefits headed their way. They can refile taxes for a maximum of three years jointly if the joint filing causes a refund.

"Since the ruling was that it was unconstitutional, it's like (the ban on same-sex marriages) never existed," Horwitz said, adding that his office had not seen any uptick in business since the ruling.

The key to remember is how new this is and how many professionals in the estate planning field are still learning the rules as states - including Pennsylvania - write them.

"There is an awful lot of dust that needs to settle," said C. Walter Whitmoyer Jr., a Lebanon attorney who specializes in estate planning. "And an awful lot of things that still need to be figured out".

"There is an awful lot of dust that needs to settle. And an awful lot of things that still need to be figured out."

C. Walter Whitmoyer Jr., Whitmoyer Law Offices


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Copyright:(c) 2014 Journal Publications Inc.


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