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The Plain English Attorney

With the recent Supreme Court case and the Treasury Department’s Revenue Ruling, same-sex couples have cause to celebrate. In many cases, these same couples are now booking trips to other states in order to get married. Even in non-marriage equality states like North Carolina, there are some clear tax benefits to getting married and an increased ease of estate planning. Yes, there is ample reason to celebrate. But now that same-sex couples can get married, the question is should they get married? There have been a lot of articles recently about reasons to get married. But are there any reasons to not get married?

Divorce is (Particularly) Messy: Getting divorced has always been harder than getting married, at least when getting married is legal in your state. Now that there are some substantial federal tax breaks and other benefits to being married, even if the marriage is performed in another state because it is illegal to be married in your own, same-sex couples are taking trips to various marriage equality states and getting hitched.

The waiting period for marriage licenses is negligible at best. For example, in Massachusetts the waiting period is three days, in New York it is 24 hours, and there is no waiting period in Maryland. However, the waiting periods for divorce, during which time you have to be a resident of the state you are getting divorced in, is one month in Massachusetts, one year in New York, and one year in Maryland. Please note that if the divorce is not consensual, meaning only one person wants to get divorced, then the Massachusetts divorce time is seven months and two years for Maryland.

Marriage is never to be entered into lightly, but same-sex partners living in non-marriage equality states should understand all of the ramifications of a possible divorce, which may include having to move to a marriage equality state for a substantial period in order to get divorced.

Social Security/Veteran’s Benefits from Former Spouse: Another important financial factor is whether or not being married would cut off certain social security benefits, and it turns out that it will. In the case of at least two of my senior couple clients, they decided to forgo getting married because it would cut off additional social security payments based on a former spouse and put a severe crimp in their monthly budget. In addition, there are many benefits available to widows and widowers of veterans that are cut off in case of a new marriage, including the Veteran’s Pension Benefit which may be extremely important if assisted living care is ever needed. While these benefits may not be applicable in many cases when considering marriage, it is worth checking them out before booking the chapel.

Medicaid: While not an issue just yet, qualifying for Medicaid for nursing home care may become an issue depending on potential future changes to law. Medicaid is considered a federal program that is administered by the states, and therefore there is a lot of latitude for the state to determine whether or not a couple is married. At the moment, non-marriage equality states like North Carolina do not recognize a same-sex marriage from any jurisdiction. When it comes to Medicaid qualification, this is actually a substantial benefit for couples who do not get married.

Paula and Clarice are married in Massachusetts and live in New York, so their marriage is recognized by the state and federal governments. Unfortunately, Clarice has dementia and Paula can no longer care for her at home. Since it has reached a point where nursing home care is needed, Paula started looking into different facilities and was shocked at the high monthly price tags. She then researched the possibility of Medicaid taking care of those monthly bills. Paula has most of the assets, and when reviewing whether or not Clarice would qualify for Medicaid it turned out she didn’t because Paula had too much money. As married spouses, all of Clarice’s and Paula’s assets are lumped together when trying to qualify for Medicaid.

Now, picture that same exact story while changing one little fact… instead of living in New York, Paula and Clarice live in North Carolina. The whole picture now changes. Since North Carolina does not recognize Clarice and Paula’s marriage from Massachusetts, all of Paula’s assets are not considered in whether or not Clarice would qualify for nursing home assistance. However, with an aging population and the rising costs of nursing home care, changes in the law to prevent same-sex couples from getting marriage benefits while not having the restrictions may come soon. Again, right now this is not a problem in North Carolina but it could in the near future.

Yes, marriage equality is coming a lot more quickly than a lot of people thought it would, and the usual considerations of love and a lifetime commitment should be the primary considerations in whether or not to get married. However, it may be worth a trip to your attorney’s or financial advisor’s office before applying for that marriage license.


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