Monday, September 30, 2013


    A decade ago, my (law) partner* and I worked on writing same-sex “union” contracts from scratch.**   There’s been a sea-change since then, but the wave is still rolling in, and exactly where it is on a given day, and what we’re advising our clients on a given day, is still very fluid.


    In 2004, California adopted “new” Registered Domestic Partnerships (NDP’s).  California NDP’s were thereafter to be treated as having the same legal rights and responsibilities as spouses under California law.  

    This was, however, the era of state and Federal “Defense Of Marriage” Acts.   Under Federal law, and under the law of (then most other) states, NDP’s were not recognized as “spouses” for any purpose, notwithstanding whatever California law had to say about the subject.  By a rough count at that time, Federal laws and regulations referred to “spouses” in a couple of thousand places. This meant, among other things, that California NDP’s had no spousal federal tax rights or benefits, had no spousal rights in connection with any employee benefit plan covered by ERISA, could not file a joint bankruptcy, had no spousal or family rights in regard to immigration, and that none of the spousal rights California conferred were necessarily “portable” to any other state. 

    Following years of court battles, California now permits same-sex couples to marry, i.e., they’re “spouses” not just in effect, but by actual label.  The NDP framework however, still remains available and in place.


    Federal law and Federal practice, in regard to same-sex partnerships, is slowly changing.  Since Congress has not yet acted to make wholesale changes in Federal law, or to explicitly repeal all parts of the Federal DOMA, these changes are still being made on a department-by department basis.  As noted elsewhere on the blog, both the Treasury Department (IRS) and the Labor Department (ERISA) have now stated that they will recognize any couple designated as “spouses” by the law of a state to be “spouses” for purposes of their Federal regulations.      To date, they have indicated that couples labeled as something other than “spouses” by the law of the state or country where they “contracted the relationship” will not be treated as spouses.

    Exactly how and when remaining Federal laws, regulations, and practice will change remains unclear; equally unclear is whether any of the changes will be given any retroactive effect.

    It also seems likely, after the Supreme Court next addressees the issue that states will no longer be able to decline to recognize “marriages” contracted between same-sex couples from other states.  This result too will probably not carry over to “civil unions”, “domestic partnerships” etc., since those states don’t recognize such status for their own citizens.

    So, for the moment, “labels still matter”.

*Not my law partner any more, but still my wife, now a judge...
**or from duct tape and general contract law.  See Gould-Saltman, D. J., and Gould-Saltman, R.F. (2002) "Gay and Lesbian Marriage and Its Alternatives"  2002 Family Law Update, Brown, R. and Morgan, L. eds,  Aspen Law & Business.

No comments:

Post a Comment