How to Protect Your Marriage When Your State Won’t


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Last year a gay marriage equality bill was voted down in the New York State senate, which means that lesbian couples still can’t get married in New York. “No big deal, honey,” you say. “We’ll just have that big fat lesbian wedding you always wanted in Provincetown.” Then, when you get home from the honeymoon and you go to change your names on your driver’s licenses, the DMV should accept your Mass. marriage certificate, right? Well, according to the New York Civil Liberties Union, that isn’t necessarily so.

Not every state agency recognizes out of state gay marriage—this goes for the Empire State as well as many others. The New York State Tax Department won’t recognize your marriage. They still follow Federal rules governed by DOMA. So you can’t file jointly. If you work for a private company or a local government agency, their health plan may not routinely cover your new spouse. You may not be recognized as the second parent if your wife has a child. Heaven forbid, you split up. The divorce laws in New York are untried. You may have to live for a year in the state where you tied the knot just to untie it.

Yes, Gov. Patterson did issue a memo in 2008 that out-of-state gay marriages should be recognized by state agencies. But, according to Lisa Linsky (out lesbian, and a partner at the firm McDermott, Will, & Emery LLP) with the marriage bill’s defeat, LGBT New Yorkers still have no right to marry; and worse, there is no clear landmark rule honoring out-of-state same-sex marriages.

“We are left with no marriage rights in New York State and only a patchwork of policies on marriage recognition subject to the discretion of individual state agencies,” says Linsky. How can that be?

Linsky who filed a “friend of the court” brief in 2009—when the New York State’s Court of Appeals considered a same-sex marriage recognition—understands the finer nuances of the court’s decision and she explains, “We won the case but the majority of the Court of Appeals refused to establish a broad legal rule for same-sex couples that reflects the State’s long-standing recognition of out-of-state marriages for opposite-sex couples. They had the chance. They didn’t do it.”

In New York, the courts and the legislature have played political football with the marriage question for years. Neither is willing to make any real moves to establish LGBT marriage equality. So where does this leave lesbian couples? Linsky urges lesbians with out-of-state marriage licenses to continue to protect themselves. “Depending on how you own your home with your partner, if you do not have a joint tenancy with a right of survivorship for example, where each owns 100 percent of the house, there could be problems down the line, particularly if one spouse dies and other family members or creditors challenge your right to stay in the house. You do not want to have to deal with these legal problems while also coping with an emotional loss.”

So make sure those healthcare proxies and living wills are up to date. Get ready to apply for second parent adoption if your wife has a baby. Make sure your wife keeps her own health insurance for now. Until the elected officials or the judges do the right thing and make marriage equality the law of the land, there are over 1,000 rights and privileges awarded to heterosexual married couples in New York alone that you cannot count on. Does that make you mad? It should. 

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