Tax filing tips as a result of the Windsor ruling on same-sex couples
By Marc Wander
Cincinnati residents James Obergefell and John Arthur lived together and were in a committed and intimate relationship for more than 20 years. When John was dying from Amyotrophic lateral sclerosis (ALS), both men knew it was a priority for his death certificate to indicate that he was “married” and not “single” when he died.
(Related: Long-Term Care Costs More Than Expected)
Ohio does not recognized same-sex marriages, and as a result the couple flew to Maryland in a private plane accompanied by medical personnel. They were married on the tarmac in Anne Arundel County and immediately flew back to Cincinnati. Next, they filed a lawsuit to ensure that Ohio officials listed John “married” once he passed away.
Judge Timothy S. Black of the U.S. District Court for the Southern district of Ohio said that “This is not a complicated case.” In his ruling he identified that, “Throughout Ohio’s history, Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized.” For example, Ohio law forbids marriages between first cousins and minors, yet it recognizes these marriage if they happened in states that permit such unions.
“How then can Ohio…single out same sex marriages as ones it will not recognized,? asked Judge Black. “The short answer is that it cannot.” He ordered state officials to enter “married” on John’s death certificate and to list James as his “surviving spouse.”
This is likely just the beginning of the barrage of state-level decisions that have been filed since the Windsor decision was handed down.
For example, in Michigan, where voters approved a ban on gay marriage, April DeBoer and Jayne Rowse, women that have lived together as a couple for seven years, wish to adopt each other’s children.
However, they cannot “because Michigan law states that only single individuals or married couples can adopt.”
The couple sued Michigan’s governor and attorney general on grounds that the state’s adoption code violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. Despite trying to get the case thrown out, Judge Bernard A. Friedman of the U.S. District Court Eastern Michigan ruled that the women’s claim had enough merit to proceed.
Friedman quoted the Windsor decision, emphasizing that “of particular importance to this case, the justices expressed concern that [the government’s definition of marriage would]… ‘impair the rights of ‘tens of thousands of children now being raised by same-sex couples.’”
And in Pennsylvania, the Department of Health has filed suit to stop a county clerk from issuing marriage licenses to same-sex couples. Since that Windsor decision more than 100 have been issued.
“These are the complications we’re going to get because there’s no uniformity across the United States right now,” says Nanette Lee Miller, a CPA who heads up the Lesbian, Gay, Bisexual and Transgender division at Marcum, a tax and estate planning firm. These cases will continue to be decided on a state-by-state basis until clarification is achieved on a nation level.
Contact Michigan estate planning attorney Marc Wander at 248-481-4000 for a free consultation, today.