Enduring Strategies for Same-Sex Couples in an
Evolving Landscape
Gail E. Cohen, Esq.
Erin Gilmore Smith, Esq.
Fiduciary Trust Company International
Estate planning goals of same-sex couples are no different from the goals of
opposite-sex couples. For married couples, however, federal and often state
laws treat same-sex couples as if they were strangers.
Two cases are currently before the U.S. Supreme Court that could dramatically
change the landscape for same-sex couples. Regardless of the rulings, there
are timely and enduring estate planning strategies same-sex couples should
consider today to minimize transfer taxes, protect assets, provide for future
incapacity, and ensure their estate plans leverage benefits that might ultimately
become available.
A Rapidly-Evolving Landscape for Same-Sex Spouses
On the state level, same-sex marriage is recognized in New York,
Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, Maine, Maryland,
Washington, and the District of Columbia. Beginning July 1, 2013, Delaware will
also recognize same-sex marriage; Minnesota and Rhode Island will join the list
beginning August 1.
New Mexico recognizes the validity of out-of-state marriages, but does not itself
allow same-sex marriage.
In addition, civil unions offering broad protections are available in Hawaii, Illinois
and New Jersey. Domestic partnerships are available in California, Nevada and
Oregon. Colorado and Wisconsin offer domestic partnerships with more limited
benefits. Domestic partnership registries, conveying limited benefits, are
available locally in some cities.
View a state-by-state analysis of same-sex unions.
On the federal level, the 1996 Defense of Marriage Act (“DOMA”) provides that
no state is obligated to recognize same-sex marriages from other states and, for
federal purposes, defines “marriage” as a legal union only between one man and
one woman. 1
Section 2: Powers Reserved to the States
No state, territory or possession of the United States, or Indian Tribe shall be
required to give effect to any public act, record, or judicial proceeding of any
other state, territory, possession or tribe respecting a relationship between
persons of the same sex that is treated as marriage under the laws of such
other state, territory, possession or tribe, or a right of claim arising from such
relationship.
Section 3: Definition of “Marriage” and “Spouse”
In determining the meaning of any Act of Congress, or of any ruling, regulation,
or interpretation of the various administrative bureaus and agencies of the
United States, the word “marriage” means only a legal union between one man
and one woman as husband and wife, and the word “spouse” refers only to a
person of the opposite sex who is a husband or a wife.
Since its enactment, DOMA has been found to impact more than 1,100 federal
laws and regulations. 2
In recent years, there have been a number of challenges to the constitutionality
of Section 3 of DOMA. 3
The Obama Administration
In February 2011, the Obama Administration announced that it would no longer
defend Section 3 of DOMA, as applied to same-sex couples who are legally
married under state law. In a letter addressed to Speaker of the House John
Boehner, Attorney General Eric Holder announced the Administration determined
that Section 3 violates the equal protection clause of the Fifth Amendment. The
Attorney General also stated he believes that classifications based on sexual
orientation warrant a heightened level of scrutiny and that Section 3 fails this
heightened standard of review. The Legislative Branch, through its Bipartisan
Legal Advisory Group of the U.S. House of Representatives (“BLAG”), intervened
in many pending court cases to defend the law.
Although the Obama Administration no longer defends Section 3 of DOMA, it
continues to enforce the law.
Windsor v. United States
The Second Circuit is the most-recent court to rule Section 3 of DOMA to be
unconstitutional. 4 The Supreme Court heard oral arguments on the case in
March and a ruling is expected by late June.
Details – Windsor v. United States
Edie Windsor and Thea Spyer were New York residents, together for more than forty
years before marrying in Canada in 2007. Beginning in 2004, New York recognized
same-sex marriages performed in Canada and other jurisdictions. Thea died in 2009;
Edie was the beneficiary and executrix of Thea’s estate.
In 2010, Edie filed a claim for refund of the more than $363,000 in federal estate taxes
paid by Thea’s estate and a ruling that Section 3 of DOMA violates the equal protection
clause of the Fifth Amendment. But for DOMA, it was argued, the federal marital
deduction would have applied and no federal estate tax would have been due.
In June 2012, the District Court for the Southern District of New York reviewed the equal
protection claim under an enhanced rational basis test, noting that laws that “exhibit a
desire to harm a politically unpopular group require a more searching form of rational
basis review.” BLAG raised four governmental interests advanced by Section 3 of
DOMA: (1) caution and the traditional institute of marriage, (2) child rearing and
procreation, (3) consistence and uniformity of federal benefits, and (4) conserving the
public fisc. The Court found that none of these interests met the enhanced rational basis
test and granted Windsor’s motion for summary judgment. BLAG appealed to the
Second Circuit, which heard the case on an expedited basis in October 2012.
The Second Circuit concluded that gay men and lesbians constitute a quasi-suspect
class and that Section 3 of DOMA must therefore be reviewed under heightened
scrutiny. In determining this classification, the Court looked to four factors: (1) history of
discrimination against the class, (2) ability of the class to contribute to society, (3)
immutability of characteristic defining the class, and (4) minority status and political
powerlessness.
Further, the Court did not find the law to be substantially related to an important
government interest (or, in the words of the Court, the justifications were not
“exceedingly persuasive”). BLAG offered four justifications for Section 3 of DOMA,
each of which was rejected.
1. Maintaining a uniform federal definition of marriage: the Court noted that defining marriage
has traditionally been an exclusive matter of state regulation and that DOMA not only
breaches a “longstanding deference to federalism”, but it does not create uniformity in the
definition of marriage because it leaves standing other inconsistences in the marriage laws
between states such as age requirements and consanguinity.
2. Protecting the public fisc: the Court found that while maintaining the public fisc may be an
important government interest, DOMA is so broad and has such far-reaching effects beyond
the legislative intent to conserve public resources that it is not substantially related to fiscal
matters.
3. Preserving a traditional institution of marriage: the Court did not recognize tradition to be an
important government interest and found that, in the alternative, even if the preservation of
the traditional institution of marriage was an important government interest, DOMA is not a
means to achieve this interest because the law does not prevent same-sex couples from
marrying under state law. It merely prohibits a federal recognition of that union.
4. Encouraging responsible child rearing: the Court noted that although the promotion of
procreation can be an important government interest, there is no substantial relationship
between DOMA and this interest because DOMA offers no incentives to opposite-sex
couples to have children
On the State Level: several states have adopted so-called “mini-DOMAs” that
define marriage as a union between one man and one woman. California’s
Proposition 8 is an example of a mini-DOMA.
Other states have adopted “super-DOMAs” that, in addition to defining marriage
as a union between one man and one woman, prohibit the recognition of civil
unions, domestic partnerships and other similar relationships.
Currently thirty-eight states have legislation or constitutional amendments (or
both) prohibiting same-sex marriage to some degree. 5
Hollingsworth v. Perry
The second case currently before the Supreme Court is a challenge to
California’s prohibition on same-sex marriage. 6 As with Windsor, a decision is
expected by late June.
Details – Hollingsworth v. Perry
In 2000, California voters adopted an initiative statutory enactment known as Proposition
22, providing:
Only marriage between a man and a woman is valid or recognized in California.
7
In 2008, Proposition 22 was stuck down as unconstitutional under state equal protection
and due process challenges by the California Supreme Court, which held that the
California constitution guaranteed same-sex couples the right to use the designation
“marriage.” 8 Following this ruling, California issued more than 18,000 marriage licenses
to same-sex couples.
A few months later, in November 2008, California voters adopted Proposition 8, the
California Marriage Protection Act. 9 Unlike Proposition 22, which was a statutory
initiative, Proposition 8 was a constitutional initiative, the language of which was the
same as Proposition 22. However, Proposition 8 did not affect the status same-sex
marriages performed prior to its enactment in November 2008. 10
In 2009, after being denied marriage licenses, two same-sex couples challenged the
constitutionality of Proposition 8 under the Fourteenth Amendment’s due process and
equal protection clauses.
In the District Court proceeding, California’s Governor Arnold Schwarzenegger and
Attorney General Jerry Brown declined to defend Proposition 8, and the official
proponents of Proposition 8 intervened. The District Court applied a rational basis
review and found Proposition 8 to be unconstitutional under due process and equal
protection grounds. Only the official Proposition 8 proponents appealed the decision.
Upon the Proposition 8’s proponents’ appeal to the Ninth Circuit, the plaintiffs raised a
third issue: Proposition 8 violates the equal protection clause by eliminating the right to
marry, which had previously been guaranteed to gay men and lesbians under the
California state Constitution.
The Ninth Circuit found that Proposition 8 did not affect any of the rationales proffered by
the amendment’s proponents – furthering the interest of reasonable procreation and
childbearing, reducing the threat of irresponsible procreation, protecting religious
freedom and preventing children from being taught same-sex marriage in school - and,
as a result, the Court did not address whether any of the justifications were reasonable
under a rational basis review.
The Court concluded that the only rationales it could infer for the enactment of
Proposition 8 was tradition, which is not a justification for taking away a right that has
already been granted, and moral disapproval of gays and lesbian women, which is
prohibited under equal protection and does not withstand rational basis scrutiny.
Estate Planning Strategies for Same-Sex Couples
As with opposite-sex couples, much of estate planning for same-sex couples is
centered upon protecting assets for the surviving spouse and ensuring each
spouse’s wishes are carried out. Depending on how the Supreme Court rules in
Windsor and Perry, DOMA and state-based legislation may not necessarily go
away. However, there are enduring estate-planning strategies to consider for
same-sex couples that are effective regardless of marital status.
Strategy One: Plan for a Federal Marital Deduction
The marital deduction is easily one of the most important and powerful benefits
available to married couples. Since this deduction allows spouses to transfer
unlimited assets to each other gift- and estate-tax free, it can offer significant
savings upon the death of the first spouse. The 2013 federal estate tax rate is
40%, with an exemption of $5.25 million.
Currently, under Section 3 of DOMA, same-sex married couples cannot take
advantage of this unlimited federal marital deduction. Same-sex married couples
should consider drafting their estate planning documents to provide flexibility in
the event that the federal marital deduction becomes available. Disclaimer
planning should also be considered.
For surviving spouses paid estate taxes at the death of the first spouse, the
executor should consider filing a protective claim for refund, if available.
Strategy Two: Consider These Drafting Strategies
Estate tax allocation clauses in existing documents should be reviewed to ensure
that any estate taxes that are ultimately due will be paid as the testator intends.
The drafting attorney should consider defining “marriage” in estate planning
documents. For example, a “spouse” may be defined as someone who has
married or entered into a civil union or domestic partnership in a jurisdiction that
recognizes such, regardless of what law governs the document. The document
may also define who constitutes a “marital child.”
Strategy Three: Leverage Trusts to Minimize Gift and Estate Taxes
Lifetime Credit Shelter Trust
Utilizing an individual’s lifetime exemption amount to create a lifetime credit
shelter trust may be an attractive planning strategy for same-sex couples who do
not wish to make outright gifts. Unlike a QTIP trust, there is no requirement that
the donor and beneficiary be married. For same-sex married couples whose
marriage is later recognized for federal purposes or for unmarried couples who
later wed, the terms of the trust and its effectiveness remain the same.
The grantor may name his or partner as the beneficiary for the partner’s lifetime.
The beneficiary-partner may be granted a power of appointment over the assets
or the trust agreement may control the disposition of the assets upon the death of
the beneficiary-partner. Distributions to the beneficiary-partner can indirectly
benefit the grantor, as each is part of the same household. To hedge against
divorce or separation, the trust agreement may define the beneficiary as the
current spouse or domestic partner.
If the grantor’s lifetime exclusion amount is utilized to create the trust, no gift tax
is due and the assets in the trust - including the appreciation on the initial
contribution - will likely not be includable in the grantor’s estate for estate tax
purposes.
A word of caution: Couples who wish to each create a credit shelter trust for the
other partner should exercise caution to avoid the reciprocal trust rule and the
inclusion of the trusts in each grantor’s estate for estate tax purposes. The
reciprocal trust rule holds that substantially identical trusts (for example, same
terms, similar asset values, contemporaneous execution) created by two
grantors for the benefit of each other are considered interrelated and will be
included in the each grantor’s estate for estate tax purposes.
Grantor Retained Income Trust (“GRIT”)
A GRIT is an irrevocable inter vivos trust into which the grantor transfers assets
and receives all net income from the trust, at least annually, during the term. At
the expiration of the trust term, the remaining assets pass to a named beneficiary
(or a trust for that person’s benefit).
The funding of a GRIT is a taxable event. However, for gift tax purposes, the
value of the assets contributed to the GRIT may be discounted to reflect the
present value of the grantor’s retained income interest. To take advantage of the
valuation discount, IRC § 2702 requires that the beneficiary of a GRIT be a nonfamily member. Under Section 3 of DOMA, same-sex married couples are not
deemed to be spouses under the tax code. The grantor may therefore name his
or her same-sex spouse as a beneficiary and still receive a valuation discount on
the transfer.
If the grantor dies during the GRIT term, the assets will likely be includable in his
or her estate for estate tax purposes. However, the grantor is in no worse
position for having created the GRIT.
Since it is unclear how a repeal of Section 3 of DOMA would affect existing
GRITs, caution should be exercised by same-sex married couples. If Section 3
is DOMA is found to be unconstitutional by the Supreme Court, the discount for
the retained interest may be disregarded. Of course, unmarried couples may still
take advantage of a GRIT.
Grantor Retained Annuity Trust (“GRAT”)
Similar to a GRIT, the grantor retains the right to receive a fixed annuity amount
for the term of the trust. At the end of the trust’s term, any remaining assets pass
to a named beneficiary, such as a partner or spouse (or a trust for that person’s
benefit). Unlike a GRIT, there is no restriction on a family member being a
beneficiary of a GRAT.
The IRS assumes that a GRAT will grow at a rate equal to the IRC Section 7520
rate in effect at the time of the transfer (1.2% for May 2013). Any growth in
excess of the 7520 rate passes to the beneficiaries tax free; and the lower the
7520 rate, the more likely the trust’s growth will surpass this hurdle rate.
The creation of a GRAT is a taxable event, and unlike a GRIT, no discount is
available on the valuation of the assets contributed to the trust. However, the
annuity amount can be structured so that the present value of the annuity
payments equals or nearly equals the value of the property contributed to the
GRAT. This “zeroing out” results in little or no gift tax paid.
The grantor’s death during the term of the GRAT will likely cause the assets of
the trust to be includable in the grantor’s estate for estate tax purposes.
However, the grantor is in no worse position for having created the GRAT.
Now may be the time to act to create a GRAT. In recent years, several bills have
been introduced in Congress intended to quash the tax benefits of a GRAT by
prohibiting a zeroing- out of the trust and requiring a 10-year term (making
growth in excess of the 7520 rate over the term of trust more difficult). President
Obama’s Green Book for 2014 also contains a similar proposal.
Charitable Lead Trust (“CLT”) & Charitable Remainder Trust (“CRT”)
For couples who are charitably inclined, CLTs and CRTs may be attractive
planning vehicles. As with a GRAT, there are no restrictions on family members
being beneficiaries. Thus, the fate of DOMA does not impact these trusts.
A CLT is structured and operates in a similar way to a GRAT, except that the
annuity payment is made to a charity rather than the grantor. At the end of the
trust’s term, any remaining assets pass to a non-charitable beneficiary, such as a
partner or other family member. As with a GRAT, the annuity amount is
calculated using the 7520 rate in effect at the time of the transfer (or, if lower, the
7520 rate in effect in either of the two preceding months). Any growth in excess
of the 7520 rate will pass to the beneficiary tax free at the end of the trust’s term.
A CRT is structured so that the income beneficiary receives either an annual
annuity amount or a unitrust amount from the trust, with the remainder passing to
a charitable beneficiary at the end of the trust’s term. The distribution from a
CRT must be between 5% and 50%, calculated either upon the initial value of the
trust assets (for an annuity) or the fair market value of the trust assets (for a
unitrust).
A CRT may be especially attractive for donors with appreciated assets. If the
CRT is funded with appreciated assets which are later sold in the trust, because
the remainder person of the trust is a charity, no tax is due on the capital gain.
The donor may also receive an income tax deduction in the year the CRT is
created, based on the value of the charity’s remainder interest in the trust.
Generally, the older the donor, the greater the deduction.
The creation of a CRT triggers a taxable gift. However, if the donor is the income
beneficiary, the CRT is not considered a gift and no tax is due. Additionally, a
CRT is generally not subject to estate tax at the death of the grantor.
Strategy Four: Consider the Benefits of Life Insurance
Properly structured, life insurance can provide liquidity for surviving same-sex
spouses or partners to offset the payment of federal and state estate taxes that
may be due upon the death of the first spouse.
Individuals may wish to consider leveraging the $5.25 million lifetime exclusion
amount to create and fund an irrevocable life insurance trust (“ILIT”). The
grantor may gift assets to the trust for the purchase of a life insurance policy on
his or her life or an existing life insurance policy may be transferred into the trust.
The trust owns the policy and the death benefit is payable into the trust, with the
beneficiary of the trust generally being the surviving same-sex spouse (or other
beneficiary who will bear the burden of estate taxes). Unlike life insurance
owned by the insured, a life insurance policy owned by an ILIT is generally not
includable in the insured’s estate for estate tax purposes. An ILIT can be drafted
in such a way to provide for flexibility if a marital deduction is available at the
death of the first spouse.
If life insurance is owned outside of an ILIT, caution should be exercised to
document that the spouse or partner owning the policy has an insurable interest
in the life of the other.
Strategy Five: Be Mindful of Property Ownership
It is important to consider state homestead laws and the rights of decedents to
devise homesteads. In addition to protecting a primary residence from creditors
and exemptions from property taxes, some state homestead laws also place
limits on an owner’s ability to devise the property. For example, in Florida, if a
homeowner is survived by minor children, he cannot devise his property outside
of his spouse and children. As same-sex marriage is not recognized in Florida, if
a homeowner is survived by minor children, the partner would have no rights to
the residence, even if devised under the decedent’s Will. An unmarried surviving
partner would be subject to the same restrictions.
Strategy Six: Ensure Ancillary Estate Planning Documents Are in Place
Prenuptial or Domestic Partnership Agreement
Prenuptial and domestic partnership agreements (sometimes referred to as
cohabitation agreements) are private contracts that set forth each spouse’s or
partner’s rights and responsibilities if their union should end, including rights
(such as spousal support) that are not otherwise available under state law. The
requirements for and enforceability of domestic partnership agreements vary
from state to state. California and Florida courts, for example, have recognized
the enforceability of these agreements; courts in Georgia, Louisiana and Illinois
have not.
Health Care Proxy
A health care proxy (sometimes referred to as an advance health care directive
or a power of attorney for health care) permits an individual designated by the
principal to make health-related decisions on his or her behalf. In California, the
statutory advance health care directive form also permits the principal to make
end-of-life decisions. Other jurisdictions, such as New York, require a separate
living will.
In the absence of a health care proxy, state law varies as to whom, if anyone,
can make health care decisions on behalf of an incapacitated patient. In New
York, spouses and domestic partners have priority to make health care decisions
in the absence of a designated health care agent or guardian. For these
purposes, a domestic partner is defined as a registered domestic partner in any
jurisdiction, a person recognized as a beneficiary or covered person under the
patient’s employee benefits or health insurance, or an individual otherwise
dependent or mutually interdependent on the other under a totality of the
circumstances test.
In Florida, in the absence of a guardian, a spouse has priority to make health
care (not end-of-life) decisions for an incapacitated individual. However, Florida
does not recognize same-sex marriages legal in other jurisdictions.
Burial Instructions
Same-sex couples should consider executing burial instructions, expressing their
wishes or naming their spouse or partner as the individual authorized to make
burial decisions.
In the absence of burial instructions, state law governs the disposition of remains.
In New York, priority over the disposition of remains is given to an agent
appointed in writing by the decedent. In the absence of an appointed agent,
priority is given to an individual’s spouse or domestic partner. The definition of a
domestic partner for these purposes is the same as the definition of a domestic
partner for health care decisions.
In other states, however, priority does not extend to domestic partners. For
example, in Florida, in the absence of written instructions, a decedent’s surviving
spouse, children, parents and siblings (in that order) have the authority to make
burial arrangements. A same-sex spouse or partner (same-sex or otherwise)
has no authorization under Florida law, absent the decedent’s written
instructions.
Conclusion
Until parity is granted to these couples, their estate plans will require special
strategies and attention. If executed property, these enduring techniques may
mitigate or even eliminate the disparate treatment same-sex spouses currently
face.
1
Pub. L. No. 104-199 (1996), codified at 28 U.S.C. §1738(C), 1 U.S.C. §7.
Pederson v. U.S. Office of Personnel Management, 881 F. Supp, 2d 294, 299 (D. Conn. 2012).
3
Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass, 2010), affirmed by, 682 F.3d 1
(1st Cir. 2012) & Massachusetts v. U.S. Department of Health and Human Services, 698 F. Supp. 2d 234
(2010), affirmed by, 692 F.3d 1 (1st Cir. 2012), Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y.
2012), 2012 U.S. App. LEXIS 21785 (2nd Cir. 2012), Golinski v. U.S. Office of Personnel Management,
824 F. Supp. 968 (N.D. Cal. 2012), Dragovich v. U.S. Dept. of Treasury, 872 F. Supp. 2d 944 (N.D. Cal.
2012), Pedersen v. U.S. Office of Personnel Management, supra, note 2,
4
Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012), 699 F.3d 169 (2nd Cir. 2012) .
5
See Appendix for a survey of the same-sex union laws of each state.
6
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), aff’d sub nom., Perry v. Brown, 671
F.3d 1052 (9th Cir. 2012).
7
CAL. FAM. CODE §308.5.
8
In re Marriage Cases, 183 P. 3d 384 (Cal. 2008).
9
CAL. CONST., art. I, §7.5.
10
Strauss v. Horton, 207 P. 3d 48 (Cal. 2009).
2
State-by-State Analysis of Same-Sex Unions in the United States
State
Alabama
Alaska
Arizona
Estimated Number of
Same-Sex Couple Households in 2010*
5,452
752
Same-Sex Marriage Legal?
Same-Sex Marriages Performed in Other
Jurisdictions Recognized?
Civil Unions and/or Domestic Partnerships Available?
Civil Unions and/or Domestic Partnerships
from Other Jurisdictions Recognized?
State Mini-DOMA: State Law
Prohibits Same-Sex Marriage?
State Super-DOMA: State Law Prohibits
Same-Sex Marriage and Other Relationships?
No
No
No
No
Yes3
Yes2
No
2
Yes3
2,3
No
No
No
1
Yes
15,143
No
No
No
No
Yes
No
Arkansas
4,015
No
No
No
No
—
Yes2
California
90,023
No5
Yes6
Domestic partnerships
Yes
Yes2
Colorado
2,3
No
12,116
No
No
Designated beneficiary agreements, limited benefits
No
Yes
No
Connecticut
9,135
Yes
Yes
No
Yes
—
—
Delaware
1,859
Yes (7/1/13)
Yes
No
Yes
—
—
District of Columbia
2,959
Yes
Yes
Domestic partnerships
Yes
—
—
Florida1
40,537
No
No
No1
No
—
Yes2,3
Georgia
15,897
No
No
No
No
—
Yes2
Hawaii
3,472
No
No
Civil unions
Yes
Yes3
No
Idaho
1,815
No
No
No
No
Yes3
Yes2
Illinois
7
3
19,670
No
No
Civil unions
Yes
Yes
No
Indiana
9,936
No
No
No
No
Yes3
No
Iowa
4,556
Yes
Yes
No
For purposes of dissolution only
—
—
Kansas
3,638
No
No
No
No
—
Yes2,3
Kentucky
6,822
No
No
No
No
Yes3
Yes2
3
Louisiana
Maine
1
5,379
No
No
No
No
Yes
Yes2
4,220
Yes
Yes
Domestic partnerships
No
—
—
Maryland
10,321
Yes
Yes
Domestic partnerships, limited benefits
Yes
—
—
Massachusetts
20,905
Yes
Yes
No
Yes
—
—
Michigan
14,794
No
No
No
No
Yes3
Yes2
Minnesota
12,589
—
Mississippi
2,790
Yes (8/1/13)
Yes
No1
No
—
No
No
No
No
Yes2,3
No
2,3
1
Missouri
9,982
No
No
No
No
Yes
No
Montana
1,614
No
No
No
No
Yes2,3
No
Nebraska
2,835
No
No
No
No
—
Yes2
Nevada
5,451
No
No
Domestic partnerships
Yes
Yes2
No
New Hampshire
2,850
Yes
Yes
No
Yes8
—
—
15,678
9
No
No
Civil unions and domestic partnerships
Yes
—
—
5,362
No
Yes
No
No
No
No
New York
45,792
Yes
Yes
No1
Yes
—
—
North Carolina
17,387
No
No
No
No
Yes3
Yes2
818
No
No
No
No
—
Yes2
18,194
No
No
No
No
—
Yes2,3
6,347
No
No
No
No
—
New Jersey
New Mexico
North Dakota
Ohio
Oklahoma
10
11
4
Yes2
2
Oregon
10,475
No
No
Domestic partnerships
No
Yes
No
Pennsylvania
21,612
No
No
No1
No
Yes3
No
Rhode Island
3,561
Yes (8/1/13)
Yes
No
Yes
—
—
South Carolina
5,597
No
No
No
No
—
Yes2
578
No
No
No
No
Yes3
Yes2
No
No
2
Yes3
South Dakota
Tennessee
9,766
No
No
Yes
Texas
43,045
No
No
No
No
—
Yes2,3
Utah
3,937
No
No
No
No
Yes3
Yes2
Vermont
1,790
Yes
Yes
Civil unions4
Yes
—
—
Virginia
13,251
No
No
No
No
—
Yes2
Washington
16,485
Yes
Yes
Domestic partnership12
Yes
—
—
West Virginia
2,306
No
No
No
No
Yes3
No
Wisconsin
9,426
No
No
Domestic partnerships, limited benefits4
No
Yes3
Yes2
No
3
Wyoming
390
No
For purpose of dissolution only
No
Yes
No
GENERAL FOOTNOTES
1. Domestic partnership registration is available in
some localities, with limited benefits.
2. State constitutional amendment.
3. State statute.
4. Applies only to same-sex couples.
5. Same-sex marriages performed between June 17
and November 5, 2008 continue to be recognized.
6. Only applies to marriages performed prior to
November 5, 2008.
7. Out-of-state marriages are treated as a civil union.
8. Civil unions valid in other jurisdictions are treated
as marriage.
9. Governor vetoed legislation to legalize same-sex
marriage. Congressional majority has until 2014 to
affirm legislation.
10. Out-of-state marriages are treated as a civil union
or domestic partnership.
11. Domestic partnerships are available only to
individuals over the age of 62.
12. Currently applies only to same-sex couples or
individuals over the age of 62. Effective June 30, 2014,
domestic partnership are available to all individuals.
Fiduciary Trust Company International advises that this guide should be used for desk reference only and should not be relied upon for legal advice on specific matters. Further, Fiduciary Trust Company International is under no obligation to update the information contained herein.
* Source: 2010 American Community Survey.
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