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The Plain English Attorney

As I write this, the U.S. Supreme Court’s rulings on the Defense of Marriage Act and the Proposition 8 case are barely a day old, and my clients want to know what this means to them. A more detailed analysis of both cases will be available in the few weeks, but I wanted to make sure the most urgent questions regarding the impact of these historic cases will have on my North Carolina clients. There is certainly much to celebrate, but, for now, my North Carolina estate planning clients shouldn’t feel the need to rush to a marriage equality state and get hitched just to get federal benefits.

Last night I was on a conference call with U.S. Senator and Judiciary Chairman Patrick Leahy (D-VT), U.S. Senator and Judiciary Committee Member Dianne Feinstein (D-CA), and The Human Rights Campaign Legal Director Brian Moulton for an overview of exactly what the DOMA and Prop 8 cases mean. The good news is that couples married in marriage equality states and living in a marriage equality state will receive full legal recognition of their marriage by the federal government. That’s the great news. Specifically related to North Carolina and other non-marriage equality states, the main considerations are that DOMA will mean something to couples legally married in marriage equality states, but not most of the big things related to taxes and federal benefits my clients are asking about. Here’s why:

This immigration rule actually had a very dramatic and welcome effect yesterday for a couple facing a crisis. Two men were married in New York with one being a U.S. Citizen and one being a foreign national applying for a green card as a spouse to remain in the U.S. The actual deportation hearing was interrupted when someone brought the Supreme Court DOMA ruling to the Immigration Judge, and the hearing was stopped. Because the federal definition of marriage for immigration law related to visas was based on whether or not the marriage was legal where it took place, the federal government could not deny the green card based on DOMA.

On the call last night, Senator Feinstein did specifically point out that social security benefits are dependent on the state definition of marriage. At this time, President Obama has ordered all departments and cabinet Secretaries to sort through the rules to fully implement the Supreme Court’s DOMA decision to the extent possible, but the struggle for equal rights in areas where the definition of marriage is determined by state of residency rather than where the marriage took place will go on. Senator Feinstein has also taken the step to introduce a full repeal of the Defense of Marriage Act, which includes the still-active portion of the law that allows states to not recognize a marriage between same-sex couples even if legal in another state.

One other item of note is that the Supreme Court decisions are not technically final yet. They only become final twenty-five (25) days after the opinion is issued because the parties have a right to file for a rehearing, although this is very rarely granted. This is also the reason why marriages in California will not start again for almost a month because the injunction banning same-sex marriages cannot be lifted by the court of appeals until the time to file for a rehearing has passed or the Supreme Court has turned down the request, whichever comes first.

As more information is released, I will keep you updated. But for now my same-sex partner couple clients who are considering going to a marriage equality state just to get federal recognition of their marriage may want to consider exactly what rights they would be getting before booking the trip.

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