Protections Denied to Same-sex Couples and Their Kids

From Why Marriage Matters:  Appendix B
By Evan Wolfson


As we have seen, most couples marry for love and the desire to reinforce the personal commitment they have made to each other. Most also want the public statement of commitment and support that marriage offers. The intangible benefits that marriage offers many families include clarity, security, structure, dignity, spiritual significance, and an expectation of permanence, dedication, and stability. Like most non-gay couples, most same-sex couples share these aspirations and needs.

In addition, according to a 2004 report from the U.S. General Accounting Office, there are at least 1,138 tangible benefits, protections, rights, and responsibilities that marriage brings couples and their kids—and that's just at the federal level. Add in state and local law, and the policies of businesses, employers, universities, and other institutions, and it is clear that the denial of marriage to couples and their kids makes a substantial impact on every area of life, from raising kids, building a life together, and caring for one another, to retirement, death, and inheritance. Most of these cannot be secured by private agreement or through lawyers.

Here are just some of the ways in which government's denying the freedom to marry punishes couples and families by depriving them of critical tangible as well as intangible protections and responsibilities in virtually every area of life:

Death: If a couple is not married and one partner dies, the other partner is not entitled to bereavement leave from work, to file wrongful death claims, to draw the Social Security of the deceased partner, or to automatically inherit a shared home, assets, or personal items in the absence of a will.
Debts: Unmarried partners do not generally have responsibility for each other's debt.
Divorce: Unmarried couples do not have access to the courts, structure, or guidelines in times of break-up, including rules for how to handle shared property, child support, and alimony, or protecting the weaker party and kids.
Family leave: Unmarried couples are often not covered by laws and policies that permit people to take medical leave to care for a sick spouse or for the kids.
Health: Unlike spouses, unmarried partners are usually not considered next of kin for the purposes of hospital visitation and emergency medical decisions. In addition, they can't cover their families on their health plans without paying taxes on the coverage, nor are they eligible for Medicare and Medicaid coverage.
Housing: Denied marriage, couples of lesser means are not recognized and thus can be denied or disfavored in their applications for public housing.
Immigration: U.S. residency and family unification are not available to an unmarried partner from another country.
Inheritance: Unmarried surviving partners do not automatically inherit property should their loved one die without a will, nor do they get legal protection for inheritance rights such as elective share or bypassing the hassles and expenses of probate court.
Insurance: Unmarried partners can't always sign up for joint home and auto insurance. In addition, many employers don't cover domestic partners or their biological or non-biological children in their health insurance plans.
Portability: Unlike marriages, which are honored in all states and countries, domestic partnerships and other alternative mechanisms only exist in a few states and countries, are not given any legal acknowledgment in most, and leave families without the clarity and security of knowing what their legal status and rights will be.
Parenting: Unmarried couples are denied the automatic right to joint parenting, joint adoption, joint foster care, and visitation for non-biological parents. In addition, the children of unmarried couples are denied the guarantee of child support and an automatic legal relationship to both parents, and are sometimes sent a wrongheaded but real negative message about their own status and family.
Privilege: Unmarried couples are not protected against having to testify against each other in judicial proceedings, and are also usually denied the coverage in crime victims counseling and protection programs afforded married couples.
Property: Unmarried couples are excluded from special rules that permit married couples to buy and own property together under favorable terms, rules that protect married couples in their shared homes and rules regarding the distribution of the property in the event of death or divorce.
Retirement: In addition to being denied access to shared or spousal benefits through Social Security as well as coverage under Medicare and other programs, unmarried couples are denied withdrawal rights and protective tax treatment given to spouses with regard to IRA's and other retirement plans.
Taxes: Unmarried couples cannot file joint tax returns and are excluded from tax benefits and claims specific to marriage. In addition, they are denied the right to transfer property to one another and pool the family's resources without adverse tax consequences.