Legal marriage may matter most when it’s over

Timothy Kincaid

August 17th, 2010

Yes, I know that you and your beloved plan on being together until death do you part. And no doubt many of you will make it there. But some of you lovebirds will squabble over worm and want to fly in different directions, and when it comes to how to split the nestegg, it matters very very much whether the IRS recognizes your marriage.

Robert Wood, writing for Forbes, gives us a few examples.

In fact, the biggest tax issues often come up on the unraveling of a marriage. Whether a couple is heterosexual or gay, the tax aspects of unraveling a relationship are very different inside and outside marriage. You might be shocked how these tax rules work.

A divorcing couple can divvy up property tax free. Again, there’s no limit. So if you jointly bought a house, you can transfer your interest to your ex without tax.

Not married? In that case, you’ll likely face income or gift taxes. If you give your half of the house to your ex-partner and receive nothing in exchange, you’ve made a taxable gift.

Suppose you’re not feeling that generous and instead are deeding your half of the house to your ex in exchange for some of your ex-partner’s stock holdings? Then you both could be hit with income taxes.

I wish this information were more central to our arguments over equality. Most folks find it surprising when we point out that not only are we denied protections and rights by our government, but we pay far more taxes then they do for the few we get.

Who knows, perhaps those who so oppose our rights on “moral grounds” might find tax inequalities an argument they could consider. After all, it was in the context of paying taxes that some fellow once said, “Give Caesar what is Caesar’s, and God what is God’s


August 17th, 2010

I agree that issues such as this should be more central to our arguments. After all, we are asking for ‘civil’ marriage rights, not ‘religious’. I’ve always said part of the problem is that there is that one word “marriage” describing those two very different things.

One other thing that should be central to our argument is the way it affects children. That essentially the children of gay headed families do not have the same benefits and security as the children of straight headed families.

Their parents pay more in taxes (as do families headed by single parents). Their parents pay more in legal fees to try to approximate the security that marriage and joint adoption will give their children. Their parents do not have the same job security in some states. Their parents have more trouble securing health insurance for the entire family in some states (especially if one wants to be a stay at home parent). The children do not have the same protection in the unfortunate event of a breakup. There may be no child support and the custodial parent may be able to insure that the children never see the other parent again if they want to be nasty.

It goes on and on. Marriage protects children too and puts the children of gay people at a disadvantage.


August 18th, 2010

And this is why we need to lobby hard (and blog hard) for the complete overturn of the very unconstitutional Defense of Marriage Act. Federal Judge Tauro in Boston struck down DOMA’s section 3 about six weeks ago. I hear the US government has until Oct 11 to react.
Check out Mass. Sen. John Kerry’s perspective:


August 18th, 2010

Why in this day and age do people still find the need to get married to one another,
Its just names on paper and an expense you could do without.
In my opinion its completely pointless.

Priya Lynn

August 18th, 2010

Jacob, I guess this post went completely over your head.


August 18th, 2010

Jacob, you might not find it pointless if for example, lacking that piece of paper was what kept you from ever being allowed to live with the one you love. Or, like someone I know, lack of that piece of papers makes them legally NOT the parents of their own children. Pointless? I don’t think so.

Marriage isn’t for you, fine, but don’t call it pointless. For many people, it isn’t.

Jason D

August 18th, 2010

The point of marriage is, in fact, legal recognition of an existing relationship.

My brother is batsh!t crazy. He got his secret girlfriend secretly pregnant and left town. He threw a hissy fit afterwards and disowned both sides of the family.

Once my parents are gone, this crazy person who won’t let me see my own nephew is now my next of kin. If I end up in a coma or dead, this nutbag who lives on the other side of the country will have more say in what happens to me than the man I’ve been living with for almost half a decade. My brother will have every right to seize my property and assets and my partner could be left without a home in the process.

I don’t trust my brother as far as I could throw him, and I work out 6 days a week.

Of all the legal arrangements you can make, nothing is quite as complete and unstoppable as a marriage license. Without it, my partner is my roommate, and nothing more, according to the government.

That’s why it’s not pointless.

Timothy Kincaid

August 18th, 2010


That is perhaps one of the better personal explanations I’ve heard as to why marriage rights are so important.


August 18th, 2010

Jason what do you think about a will and a living will?

Jason D

August 18th, 2010

alfred, I think a will can be contested in court—especially by next of kin.

I would suspect, but do not know if a living will is just as vulnerable.

Plus even with a Will, I do believe there would be fees my partner would encounter that my next of kin would not.

Jason D

August 18th, 2010

Timothy, I am actually quite frightened of what could happen to me if things are left up to my brother. He is a scary vindictive person. I won’t go into details, but my partner and I aren’t quite at the point of talking about living wills and such. But I did tell him that I can’t leave things up to my brother, once my parents pass we HAVE to do something about this, if not before.

For the time being we’re okay. Our families are very much supportive of us to the point of being obnoxious about it :P I have no doubt my tiny, frail, feisty, elderly mother would knock over just about anyone who tried to stop my partner from being at my side if worse came to worse.


August 18th, 2010

Coxygru is right.

With DOMA in place we will NOT be equal even when same-sex marriages are allowed.

In Calif, “domestic partnerships” provides the same benefits that the marriage will provide to same-sex couples (once Prop 8 is overturned). Nothing changes except the term, which is basically all State and NO Federal (and incidentally equal to hetero marriages minus the Fed).

I didn’t realize this until I read a legal self-help book written by practicing attorneys who specialize in same-sex marriages & domestic partnerships.

So DOMA is really the wrench in the machine.

@Jason D, I hope you can convince your partner to get this straightened out ASAP and to overlook the uncomfortable aspects of it, especially since you don’t trust your brother. I hope that you both will live long and happy lives together, but when a death occurs, it can happen within hours and that’s not the time to try and figure everything out.


October 4th, 2012

Marriage is a commitment not to be taken lightly

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