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Gay Marriage In Connecticut: Hazardous To Your Wealth?

You’re gay. You live in Connecticut. You want to marry.

The question is, will you be treated financially in the same manner as heterosexual couples? The answer is yes and no.

The Connecticut Supreme Court recognized gay marriage in 2008 and the legislature codified it. Essentially, this made the state's laws on marriage and divorce gender and orientation neutral.

But the word 'essentially' is where the rub lies. Because the federal government and some states don't recognize same sex marriages, these couples face a number of challenges impacting the transfer of wealth upon marriage, divorce or death. Over 1,000 federal laws take marital status into account, often with negative consequences.

For example, on the federal level, the Defense of Marriage Act (DOMA) prevents. Same sex couples from:

  • Filing joint tax returns
  • Obtaining Social Security Survivor benefits;
  • Taking advantage of spousal transfer exemptions for estate planning purposes.

Take the example of the gay couple in Massachusetts who had been together for sixty years. They were officially married in 2004 shortly after it became legal to do so in Massachusetts. When one spouse died in 2008, the surviving spouse was blocked from receiving social security survivor benefits because the marriage, although recognized under state law, was not recognized under DOMA. While the monthly benefit amounted to only $700 per month, multiplied over the rest of the surviving spouses’ lifetime it could have easily been worth $100,000.

And there are other complications. Case in point, getting married in Connecticut does not necessarily confer jurisdiction to be divorced in Connecticut. If a same sex couple travels to Connecticut to marry from a home state that does not recognize gay marriage - they may not be able to get divorced in their home state. The non-recognition of their marriage in their home state means they will not be able to take advantage of that state’s divorce laws when dividing their financial assets, even if those terms are advantageous.

The Obama administration’s recent decision not to defend DOMA in court will have little day-to-day impact for married gay couples. However, while those challenging DOMA in court – a costly and long process – may not face opposition from Obama Administration lawyers, they may suffer from the adverse consequences at the state level. Furthermore, federal agencies must still follow and enforce DOMA until such time it is overturned or repealed. Finally, the Obama administration’s decision has no effect on state laws in states where gay marriage is not recognized.

Fortunately, most of the unfavorable aspects of non-recognition can be defeated through a well drafted pre-nuptial agreement. For example, a same sex couple can, in the event of a divorce, agree to submit themselves to the jurisdiction of Connecticut courts (and require physical relocation if necessary) in the event that they have relocated to a non-recognition state since becoming married.