All Legal Same-Sex Marriages Will Be Recognized for Federal Tax Purposes

 

 Ruling Provides Certainty, Benefits and Protections Under Federal Tax Law for Same-Sex Married Couples

The U.S. Department of the Treasury and the Internal Revenue Service (IRS) today ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.

See the full article at:

http://www.treasury.gov/press-center/press-releases/Pages/jl2153.aspx

 

State Judge Declares Same-Sex Marriage Legal in New Mexico

 

On Monday, a judge in New Mexico ruled that the state’s constitution prohibits sexual orientation discrimination and ordered Bernalillo County, New Mexico, to recognize such unions.  Bernalillo now joins the counties of Santa Fe and Dona Ana in recognizing same-sex marriage and issuing marriage licenses to same-sex couples. New Mexico currently has no law or constitutional amendment prohibiting same-sex marriage.

You can find the entire article on the Huffington Post:  http://www.huffingtonpost.com/2013/08/27/new-mexico-gay-marriage_n_3822067.html

 

New DOL Policy Extends FMLA Spouse Coverage to Legally Married Same-Sex Couples

by

Mariah L. Passarelli

The Secretary of the U.S. Department of Labor (“DOL”), Thomas E. Perez, sent an email on August 9, 2013 notifying his staff of a policy change that expands “spouse” coverage under the Family Medical Leave Act (“FMLA”) to a legally married same sex partner as a result of the Supreme Court’s decision in United States v. Windsor, 133 S.Ct. 2675 (2013).

 In Windsor, the Supreme Court struck down portions of the federal Defense of Marriage Act (“DOMA”), thereby legitimizing the marriages of thousands of same-sex couples who had been legally married in one of the twelve states[1] or Washington D.C., where same-sex marriage is permitted by law.  In the aftermath of Windsor, individuals married in one of the legalized states or D.C. are considered to be married from a federal benefits perspective. However, because many federal laws depend upon the individual’s state of domicile, it has not been entirely clear what effect the case will have on individuals who were married in one of the legalized states, but reside in a state where same-sex marriage continues to be unrecognized. 

 In one of the first clarifying directives to come from the federal government describing the Windsor decision’s impact on specific federal laws, the recent email from DOL Secretary Perez states that, effective immediately, legally married same-sex partners are now considered to be “spouses” under the FMLA. This change means that qualifying individuals may take FMLA leave to care for a legally married same-sex partner who has a serious health condition, regardless of whether the state in which that couple lives recognizes same-sex marriage.  This expansion also applies to the spouse provisions of the Qualified Exigency Leave and Military Caregiver Leave sections of the FMLA. Significantly, however, same-sex partners who are not legally married continue to be unprotected by the FMLA.

 Given the DOL’s directive, Employers should consider revising their FMLA policies to treat a legally married same-sex partner as a spouse.”

________________________ 

[1] As of the date of this writing, same-sex marriage is recognized in California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington D.C.

Mariah L. Passarelli is an associate who focuses her practice on a variety of labor and employment law matters, from employment contracts to complex litigation.  In addition to her work in the Labor & Employment Section, Mariah is a member of the firm’s Nontraditional Couples and Families practice group.
 

DOD Announces Same-Sex Spouse Benefits

Below is a DOD release stating that it will grant leave to military spouses living in non-recognition states to travel to a state that permits marriage…..

DOD Announces Same-Sex Spouse Benefits

            Today, the Department of Defense announced its plan to extend benefits to same-sex spouses of uniformed service members and Department of Defense civilian employees.

           After a review of the department’s benefit policies following the Supreme Court’s ruling that Section Three of the Defense of Marriage Act (DOMA) is unconstitutional, and in consultation with the Department of Justice and other executive branch agencies, the Defense Department will make spousal and family benefits available no later than Sept. 3, 2013, regardless of sexual orientation, as long as service member-sponsors provide a valid marriage certificate.

           The Department of Defense remains committed to ensuring that all men and women who serve in the U.S. military, and their families, are treated fairly and equally as the law directs. 

           Entitlements such as TRICARE enrollment, basic allowance for housing (BAH) and family separation allowance are retroactive to the date of the Supreme Court’s decision.  Any claims to entitlements before that date will not be granted.  For those members married after June 26, 2013, entitlements begin at the date of marriage.

           We recognize that same-sex military couples who are not stationed in a jurisdiction that permits same-sex marriage would have to travel to another jurisdiction to marry.  That is why the department will implement policies to allow military personnel in such a relationship non-chargeable leave for the purpose of travelling to a jurisdiction where such a marriage may occur.  This will provide accelerated access to the full range of benefits offered to married military couples throughout the department, and help level the playing field between opposite-sex and same-sex couples seeking to be married.

           For civilian benefits administered government-wide to federal employees, the Department of Defense will follow the Office of Personnel Management and the Department of Labor’s guidance to ensure that the same benefits currently available to heterosexual spouses are also available to legally married same-sex spouses.

           Read the implementation memo from Secretary of Defense Chuck Hagel online as well as further guidance on extending benefits to same-sex spouses of military members from Acting Under Secretary of Defense for Personnel and Readiness Jessica Wright.

Pennsylvania Bill Would Prohibit Sexual Orientation Discrimination

 

Bi-Partisan Pennsylvania Bill Seeks  End to Sexual Orientation Discrimination in Workplace.

For the full law360.com story, click on the following link:  http://www.law360.com/pennsylvania/articles/464538?nl_pk=500a7f27-980b-4b47-9d2f-1ea7cc1b39cf&utm_source=newsletter&utm_medium=email&utm_campaign=pennsylvania

 

Assisted Reproductive Technology: An Overview of Rights and Responsibilities

 

by  Tiffany Jenca

One of the biggest decisions every couple faces is whether, and when, to have children. Significantly fewer couples must decide how to have children. For most same-sex couples, though, the “if” cannot be separated from the “how.”

Today, the “how” is typically accomplished through methods known as Assisted Reproductive Technology, or “ART.” This post provides a general overview of two common forms of ART: surrogacy and sperm/egg donation.

Surrogacy

A “surrogate” is a woman who carries to term and gives birth to a child who will legally be the child of another: the “intended parent.” A “traditional” surrogate is a woman that carries to term for the intended parent a child comprised of the surrogate’s own egg and a donated sperm. A “gestational” surrogate is a woman who carries to term for the intended parent a child with whom the surrogate has no biological relation, because her egg was not used in the embryo.

In determining which type of surrogacy is right for you, it is important to understand that, in the surrogacy context, a biological relationship to the child is often legally favored in Pennsylvania. Because of the potential for confusion and resulting legal battles if a traditional surrogate later decides to seek custody of the child to whom she is biologically related, most intended parents choose to use their own sperm/egg and a gestational surrogate. Moreover, Pennsylvania courts strictly limit the rights of a gestational surrogate and acknowledge that “no law in this Commonwealth” provides a gestational surrogate standing to seek custody of a resulting child as against a biological parent.

Egg and Sperm Donation

Unlike with surrogacy, in the sperm/egg donation context, a mere biological relation to the child is typically insufficient, on its own, to establish parental rights. So, although a sperm/egg donor is biologically related to the resulting child, the donor’s legal rights and obligations to the child often turn on the donor’s social, emotional or financial involvement in the child’s life.

For example, Pennsylvania courts have held that anonymous sperm and egg donors enjoy no rights with respect to the resulting child. The donor and the intended parent enter into separate contracts with a third party agency, which contracts effectively terminate any potential rights between donor and child.

The law is not as cut-and-dry, however, when an intended parent opts to use the sperm or egg of a “known donor,” such as a friend or former love interest. Pennsylvania cases illustrate the broad spectrum of legal rights and responsibilities under Pennsylvania law that may (or may not) attach to a known donor.

In one case, a man agreed to donate sperm for his former lover’s use in an ART procedure. The parties orally agreed that the man would have neither parental rights over the children nor a financial obligation to support them. The couple concealed the donor’s identity as the children’s biological father, and he was generally uninvolved in their lives. Nevertheless, the mother decided to seek child support payments from him. Ultimately, the court refused her claim, acknowledging that parental obligations go hand-in-hand with parental rights. Because the man had—by agreement, and, in practice—not been involved in the children’s lives, he could not be required to pay child support.

Conversely, where the known donor visits his biological children’s home and becomes an “integral part” of the children’s life, Pennsylvania courts do not hesitate to find that the donor is also obligated to financially support his children, and may actually have parental rights to the children.

In sum, the key legal principles that those considering using Assisted Reproductive Technology should keep in mind, are:

  1. In the surrogacy context, biological parents are legally favored in Pennsylvania. To prevent future legal disputes over who is the child’s parent, the safest option is for the intended parent to use his/her own sperm/egg in creating the embryo, and to use a gestational surrogate.
  2. In the donation context, anonymous sperm/egg donors typically have no parental rights or financial obligations to children born from those sperm/eggs. On the other hand, known donors who choose to be a part of the lives of the children born from his/her sperm/egg, may actually become financially obligated and have legal rights to the child.

Although ART planning is complex and may seem overwhelming, many potential issues can be limited or avoided altogether by ensuring that the proper legal documents are in place prior to beginning the ART process. It is always advisable to seek help from attorneys experienced in these matters.

Are you and your partner or spouse ready to start your family?  Let us help.  Contact Maureen Cohon or one of the experienced other attorneys in our Nontraditional Couples and Families practice group to make sure that your rights are protected.  

Tiffany Jenca is a third-year law student at Duquesne University and was a 2013 summer associate in the firm’s Pittsburgh office.

The Aftermath of DOMA: Sales Boon, HR Burden?

by Kristi Davidson

Kristi Davidson’s featured column in the August 2013 issue of HFN Magazine, a publication for the home furnishings, housewares, rugs, furniture, textiles, tabletop and retail industries, discusses both the benefits and the burdens facing those industries in the wake of the Supreme Court’s rulings in Hollingsworth v. Perry and United States v. Windsor. 

The full article, entitled “The Aftermath of DOMA:  Sales Boon, HR Burden?” can be read here:  http://www.hfnmag.com/opinions/columns/the-aftermath-of-doma-sales-boon-hr-burden/

Pennsylvania Leads the Fight After DOMA for Whole-Milk Marriages

by Kate Paine

We are excited to announce that Equal Magazine’s August 2013 issue features another article by attorney Kate Paine.  Her article, “Pennsylvania Leads the Fight After DOMA for Whole-Milk Marriages,” briefly describes the Supreme Court’s June decisions in the Proposition 8 and DOMA cases, and then discusses the merits and potential outcome of the recently-filed Pennsylvania lawsuit challenging the state’s law prohibiting same-sex marriage.

Read the full article at the link below (begins on page 36).

http://issuu.com/pittsburghpride/docs/equal_aug_2013_issuu