How has the legalization of same-sex marriage in Pennsylvania altered the adoption process for same-sex couples?

by Gabrielle Lee (Summer Associate)

“Any individual may become an adopting parent.” This statement, cited from Pennsylvania’s Adoption Act now rings true for same-sex married individuals seeking to adopt their spouse’s children through what is called a “second-parent adoption.”  The Adoption Act provides that, unless the court determines otherwise, the consenting parent of an adoptee (the child to be adopted) must permanently relinquish all parental rights to his or her child unless the adopter is the consenting parent’s spouse.

Prior to Pennsylvania’s Whitewood decision, which struck down Pennsylvania’s law refusing to recognize same-sex marriages, this “spousal exception” did not apply to same-sex couples, whether lawfully married outside of Pennsylvania or not.  Although the Adoption Act did not explicitly prohibit same-sex couples from adopting, it imposed additional hurdles not faced by opposite-sex married couples. Same-sex couples wanting to adopt had two options: either the consenting parent could temporarily relinquish all rights to the child and subsequently file for a joint adoption with the spouse, or the consenting parent could attempt to persuade the court that the adopting partner should be permitted to adopt while the parent retained custody. For the latter option, the court had the discretion to determine if the adoption was in the best interest of the child.

Fortunately, now that Pennsylvania recognizes same-sex marriage, married same-sex spouses no longer encounter these time-consuming and emotionally-draining hurdles that existed before Whitewood.

 

What is the status of registered domestic partners in Pennsylvania post-Whitewood?

by Matthew Dulac (Summer Associate)

Now that same-sex marriage is legal in Pennsylvania, same-sex couples registered as “domestic partners” or “life partners” in cities like Pittsburgh, Harrisburg, and Philadelphia may be wondering whether employers or State and Local officials will continue to provide domestic partner benefits.

Starting on June 30, 2015, Allegheny County will no longer provide benefits to county employees in registered domestic partnerships. (http://wesa.fm/post/allegheny-county-domestic-partners-given-more-time-losing-benefits.)  As County Executive Rich Fitzgerald stated: “Now that same sex marriage is legal in Pennsylvania, I believe that it is important to continue to keep our employees on equal footing and that means requiring proof of marriage for coverage of a spouse, partner and/or family members.” With respect to the benefits afforded to all other same-sex couples registered as domestic partners, the city of Pittsburgh is apparently reviewing  its policies in the wake of Whitewood and has yet to declare whether the benefits it extends will continue. In the employment context, each employer remains free to decide whether to continue to extend domestic partner benefits to its eligible employees,

At this point, it is not clear whether Harrisburg, which has provided same-sex domestic partner benefits since 2008, and Philadelphia, which has provided such benefits since 1996, will continue to do so.  But, with same-sex marriage now legal in the state of Pennsylvania it would not be surprising if these cities stop extending spousal benefits in the relatively-near future to same-sex couples that are not “married”.

 

 What is the status of domestic partnership benefits on a federal level post-Windsor?

by Matthew Dulac (Summer Associate)

Before the United States Supreme Court struck down the Defense of Marriage Act (“DOMA”) in United States  v. Windsor, the federal definition of “marriage” was limited to that between a man and a woman. For that reason, same-sex couples in registered domestic partnerships and civil unions could not receive spousal benefits under federal law.  This has not changed post-Windsor, since same-sex and opposite-sex married couples are now afforded (nearly all of) the same treatment under federal law.  That is, federal spousal benefits are only extended to “married” couples – whether same-sex or opposite-sex – and not to domestic partners.

In fact, several federal agencies have clarified that “marriage” means only couples who are actually married under the law, regardless of sexual orientation, and not those in registered domestic partnership or civil unions.  For example, in September 2013, the Internal Revenue Service (IRS) stated in Revenue Ruling 2013-17  that, for tax purposes, the term  “marriage” includes marriage between individuals of the same sex but does not include registered domestic partnerships.

Similarly—and just two days after the IRS—the US Department of Labor (DOL) released its own statement in the DOL Guidance to Employee Benefit Plans 2013-04 that it would interpret “spouse” as any individual lawfully married under any state law, and “marriage” to include a same-sex marriage that is legally recognized as a marriage under any state law.  The DOL also stated, however, that the terms “spouse” and “marriage” do not include individuals in a relationship that is not denominated a “marriage” under state law, such as a domestic partnership.

In sum, even though same-sex marriages now are eligible for many of the same federal benefits as opposite-sex marriages, domestic partnerships remain unrecognized for the purpose of receiving federal spousal benefits.

If you die intestate (without a last will and testament), will your same-sex spouse be considered a “spouse” for purposes of inheritance?

by Mercedes Bugallo (Summer Associate) 

Yes.  One of the effects of the Whitewood decision is that same-sex spouses are considered a “spouse” for purposes of Pennsylvania’s intestate succession process. A person domiciled in Pennsylvania who dies without a will is said to have died “intestate” and his or her estate is divided according to Pennsylvania’s intestate succession laws. The existence of surviving children or parents will affect the amount of the estate and other property to which the same-sex spouse is entitled.  If the deceased left no children or parents, then the surviving spouse inherits everything. Importantly, property inherited from a spouse is exempt from Pennsylvania’s estate tax.

For more detailed information, please refer to this chart, located on the Allegheny Register of Wills’ website: http://www.alleghenycounty.us/wo/probate/intestate.pdf

 

 

Does the recognition of same-sex marriage in Pennsylvania have any effect on immigration visa petitions for Pennsylvania citizens?

by Mercedes Bugallo (Summer Associate)

Immigration visas, unlike marriage recognitions, are regulated by the federal government, not the individual states.  This means that the Pennsylvania Whitewood decision, albeit groundbreaking on a state level, has no effect on a same-sex couple’s application for green cards or fiancé visas.

Fortunately, however, the federal government has been treating both same-sex and opposite-sex married couples alike for immigration purposes since shortly after the U.S. Supreme Court declared the federal Defense of Marriage Act (“DOMA”)
unconstitutional in 2013, in the case of United States v. Windsor.  Before Windsor, a U.S. citizen could not sponsor his or her foreign spouse for a green card or fiancée visa. Now, bi-national same-sex couples are afforded the same consideration as opposite-sex couples for immigration purposes.  Indeed, according to the U.S. Citizenship and Immigration Services (USIS), which is the organization in charge of the visa process for spouses of American citizens, USIS reviews immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.

Keep in mind that “the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. . . . The domicile state’s laws and policies on same-sex marriages will not bear on whether USCIS will recognize a marriage as valid.” In other words, USCIS will consider visa petitions of same-sex couples who have a valid marriage license from a U.S. state or foreign country where same-sex marriage is legal, even if the couple lives in a state that does not recognize same-sex marriage. But, it will not consider visa petitions for same-sex spouses whose marriage was performed in a country or state that does not recognize same-sex marriage, even if the couples lives in a state that does recognize same-sex marriages, because the marriage was not lawfully entered into.

 The U.S. Citizenship and Immigration Services’ FAQ section for same-sex marriage applications and benefits can be found at: http://www.uscis.gov/family/same-sex-marriages.

 

Are out-of-country same-sex marriages (e.g., Canada) now recognized in Pennsylvania?

by  Mercedes Bugallo (Summer Associate)

Seventeen countries have legalized marriage for same-sex couples nationwide (Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, France, Brazil, Uruguay, New Zealand, Britain, and Luxembourg).  Two others allow same-sex marriage on a regional basis (Mexico and the United States).

Same-sex couples who married abroad can rest assured that the state of Pennsylvania will automatically recognize their marriage. There is no formal process or forms to fill out for the marriage to be recognized in the state.

However, marriages from other countries are not automatically registered in the Commonwealth of Pennsylvania. This means that while Pennsylvania will recognize foreign marriages of same-sex couples, it will not maintain records of those marriages, because marriage records are maintained by the jurisdiction that granted the marriage license. Same-sex couples getting married abroad should, therefore, obtain certified copies of their marriage license from the country in which it took place. There are a various reasons why someone may need a copy of his or her marriage record. For example, proof of marriage may be required for name changes, to collect Social Security or pension benefits, for adoption purposes, and for some passport applications.

For more information, listen to Equality Pennsylvania’s “Questions and Answers about Marriage in PA”: http://www.equalitypa.org/questions-and-answers-about-marriage-in-pa/