As of July 24, same-sex couples may legally marry in New York.1 While same-sex couples will now enjoy numerous benefits that were previously denied to them, a panoply of benefits provided by federal laws available to heterosexual married spouses continue to be unavailable to similarly situated same-sex married couples. This unequal treatment of legally married same-sex couples arose with the passage of the Defense of Marriage Act (DOMA) in 1996 by the U.S. federal government.2 The enactment of DOMA permitted the federal government to only recognize the legitimacy of heterosexual marriages.3 In other words, discrimination against same-sex couples legally married has been codified by the federal government since 1996.
The federal government’s non-recognition of same-sex couples has far reaching effects. This article will not attempt to address all of the current inequalities, but rather will focus on specific federal tax advantages which are unavailable to legally married same-sex couples who subsequently divorce—advantages that are unavailable solely due to the couple’s sexual orientation. As a result, until DOMA is repealed, practitioners must continue to utilize the remedies previously developed for the dissolution of same-sex relationships (when marriage was unavailable to same-sex couples) to overcome the existing federally sanctioned discrimination.
Federal Benefits
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