THE PRIVILEGES OF THE LEGALLY MARRIED and the Notion of EQUAL PAY FOR EQUAL WORK

            It is useful to outline all the benefits and drawbacks of legally sanctioned marriage. That is, how does government policy affect persons who enjoy a particular form of adult sexual relationship as defined by "the state?" Do children have to be involved? Do others who don't participate in these relationships help subsidize them (pay or play)? (Some of this does repeat points already made in the DADT book.)  There is a detailed survey of the legal and social implications of same-sex marriage at http://www.doaskdotell.com/content/gaymarr.htm

            The benefits include:

 (1) The right to file joint income tax routines (federal and many states), which mainly benefits couples in which one spouse largely supports the other. (In Massachusetts for 2004, tax routines may be very complicated as joint returns are possible at the state but not federal level, yet the state adjusted gross may depend upon the federal. See Joe Crea, “Gay Marriage brings tax headaches in Mass.; Couples must file as married and single.” The Washington Blade, Jan. 14, 2005, p. 14/

(2) The privilege of buying health insurance for one's spouse through the workplace in many full-time permanent jobs, without tax liability for the employer's contribution. This often means one spouse can afford to work as a stand-alone freelancer or contractor and actually make even more money! Employers can offer domestic partner benefits but not make them tax-free.

See Amy Joyce, “Majority of Large Firms Offer Employees Domestic Partner Benefits,” The Washington Post, June 30, 2006, showed 253 of 500 Fortune employees offered health benefits to domestic partners. Sometimes, as with Levi Strauss, progressive employers even bump up the base salary to cover the post-tax cost to the employee.

(3) Ease in establishing insurable interest when buying life insurance.  “Insurable interest” is supposed to mean the loss the beneficiary would realize if the insured were to die. In a same-sex sexual partnership where there is a “rebuttable presumption” that both partners should be economically self-sufficient (in contrast to the older idea of the family where the husband was the breadwinner), an insurance company might assume that there is no valid insurance interest, and possibly anti-selection or even potentially a criminal motive. Civil union laws are usually constructed to deal with this problem (which is one factor in the opposition of some social conservatives even to civil unions).  If two same-sex partners have a bona fide business relationship (they jointly run a hotel, for example), then normally insurable interest in the partner exists as a “key person.” A same-sex sexual partner designation of a beneficiary might also be challenged after death by a blood relative.

(4) Visitation rights (and power of attorney) in hospitals.For "domestic partners" setting up comparable rights costs about $100 of an attorney's time. See also (17).

(5) The likelihood that joint bank loans (for businesses or mortgages) are easier to get.

(6) In some cases, exemption from inheritance tax.  Now (2003), however, the first one million is usually exempt from estate taxes for single individuals, whereas legal spouses have an unlimited exemption. The LLDEF knows of cases where the surviving gay partner has had to sell as house.[1]  Inherited IRA’s can only be rolled over for legal spouses; when inherited by unmarried persons the arrangements are much more complicated (involving trusts) otherwise they would be ordinary income. This is a potentially important advantage.

(7) In practice, the unlikelihood that wills will be challenged. Wills for domestic partners may cost several hundred dollars to draw up reliably. (Division of property after a separation often costs hundreds of dollars, but this may be the case for legal marriages, too.)

(8) In some cases, use of the Family and Medical Leave Act (with a guaranteed right to keep employed when leave ends when Short Term Disability income is not paid).

(9) In many cases, joint travel discounts.

(10) In many (or most) states, the ability to adopt a child as a couple.

(11) Lower automobile insurance rates; the right to drive a spouse's car and be covered.

(12) In some cases, mention of spousal relationship in obituaries

(13) It may be much easier for a legally married spouse to immigrate and request political asylum. (Before 1991, INS rules prohibited immigration by homosexuals altogether, another example of past government discrimination!) A law proposed in 2006 would make it a crime to assist an unmarried partner to stay in the United States illegally, so the unavailability of same-sex marriage in most states has a discriminatory effect.

(14) Usually, immunity from requirement to testify against a spouse. This is even true in a civil suit (other than divorce, child custody or visitation or support), and gay partners do not enjoy such immunity, such as when Rosie O’Donnell was in litigation with the publishers of her magazine.

(15) Social security benefits for the surviving legal spouse. They are not available to a surviving same-sex partner (whatever the state laws where the person lived) and usually not to minor children who are not legally adopted (not possible for gay parents in a few states) or related by birth.

(16) When adding a partner to an automobile title, exemption from extra sales tax (some states).

(17) When both partners are in a nursing home, ability to share a room

(18) In a few cases, eligibility for employment offered only to couples (such as running a motel).

(19) Various joint property rights without having to pay attorney’s fees to file them.

(20) Normally, legal spouses (even separated spouses) may not be disinherited. Normally legal spouses will be irrevocable beneficiaries on life insurance policies. Typically, a legally married worker cannot take a single life option on a pension annuity when retiring without his legal spouse’s consent. On the other hand, many companies do not allow survivorship “annuity certain” pension benefits for non-legal partners.

(21) Particularly in community property states, it is often easier for a couple to qualify for a mortgage.  For discussion of home-ownership devices for non-legally married couples (joint tenancy and tenants in common, see Hayden Curry, Denis Clifford, Robin Leonard, A Legal Guide for Lesbian and Gay Couples, Berkeley, Nolo Press, 1994, p. 7-19). In the Y 2000 California election, there is a Proposition N to make it illegal for couples to purchase or sell units under tenancy in common.  Since tenancy in common is particularly used by same-sex couples, thos proposition has been seen as an attack on gay and lesbian couples.  See ad in the Oct 19 Bay Area Reporter).

(22) As illustrated by a case in 2000 when a lesbian (Diane Whipple) in San Francisco was mauled to death by a neighbor’s dog, the right to sue for wrongful death of a spouse.  (But in 2001 a court ruled that Whipple could sue as a domestic partner.) 

(23) In some states, the ability to collect unemployment after moving when a spouse takes a new job.

(24) In some states, the ability to pass on real (or personal) property to a spouse without taxes. (Source: Rodney Hunter and Lara Schwartz, “Home Rules: Tax Law Penalizes Some GLBT Home Owners”, HRC Equality, Fall 2003. 

(25) The right to use unpaid family leave in the workplace to care for an ill spouse (or child or parent). This cuts both ways, as some family activists argue that the Family and Medical Leave Act does not go far enough and should require paid leave for families with children.)  Source: Mary Ellen Slayter, “Career Track: Time Off When You Need It the Most”, The Washington Post, Oct. 12, 2003.

(26) Sometimes, inequitable treatments by landlords, as with rent control. 

(27) The right to make gifts to the partner over a specified maximum ($11000 per year or 1 million life) without income tax to the recipient.

(28) Sometimes some welfare benefits and food stamps for spouses.

(28) Many other benefits that are generally improbable, like the right to Secret Service protection for a spouse or legally related family member for the President or Vice President or political candidate.

(29) Sometimes, the Alternative Minimum Tax will be less favorable. Here is one reference at the Motley Fol. http://www.fool.com/taxes/2000/taxes000915.htm, or HR Block http://www.hrblock.com/taxes/fast_facts/articles/amt_feature.html

This tax tends to hit large families with many exemptions and may become a bigger problem for the “middle class” in coming years as an unwelcome effect of the tax cuts.

(30) The right to litigate over right of consortium with a spouse. AP, “New Married Lesbians File Malpractice Lawsuit,” The New York Times, May 23, 2004, P A16. The lawsuit maintains loss of consortium for Cindy Kadish for the breast cancer of her spouse Michelle Charron, who were legally married in Massachusetts on May 17, 2004.

(31) Eligibility for special grants. In Washington DC 2005 there is a program for heterosexual couples making less than $50000 per year, where they get 3 for 1 government grants for school or business and cash grants if they get legally married within three years.

(32) As Rosie O’Donnell points out on Larry King Live (11/18/2005), the right to maintain confidentiality about certain aspects of a relationship, and this can matter in custody situations.

(33) IMPORTANT: Recently, in response to hazards caused by too many people living together in crowded units (in high rent areas), some communities have considered zoning laws that would limit the ability of legally unrelated people to live together. This may become an issue in some northern Virginia communities as there have been some serious incidents. This one needs to be watched carefully, as same-sex couples could get excluded by such legislation.

(34) Frederick P. Gabriel-Deveau, “The Puzzling Problem of Same-Sex Estates: Gay couples confront a host of unique challenges when crafting their estate plans,”  Robb Report Worth,  Feb. 2006, p. 100, discusses in detail the extreme care that gay couples must take, in situations such as sharing home ownership, moving title papers across state lines, and preventing blood relatives from contesting wills (the article suggests videotaping each partner’s will), and “tilting,” which is “joint tenants with right of survivorship.” Homosexual partners faces enormous problems with estate taxes, and charitable remainder trusts may be one way to work around some of them. .

Most of the benefits matter when one of the partners is not economically self-sufficient, which is why many “single” gay people can go through life unaware of the importance of these benefits to many other people.  Most of them (outside of those such as social security survivorship or immigration that are dependent on federal law) can be legislated by a state with a civil union law, but it is now controversial (and very doubtful) that another state needs to recognize them (especially in view of the Defense of Marriage Act and many similar state laws).

(Reference: Lisa Keen, "Gays Still Waiting at the Altar," The Washington Blade, June 19, 1998, p. 1; for drawbacks, below: "Tax Break for Couples Could Create Imbalance Elsewhere," Owen Ullmann, USA Today, August 10, 1999 with quotes from Boston College economist Alicia Munnell on the mathematical paradigm.)

Here are some more references:

http://www.marriageequalityny.org/SSMprimer.pdf

http://registeredrep.com/ar/finance_think_beyond_needs/

Ruth Halcomb, “Think Beyond the Needs of Ozzie and Harriet Families,” Oct. 1, 2002, Registered Rep, see

http://registeredrep.com/ar/finance_think_beyond_needs/

For information on inheritance tax and gift tax, I like this: http://www.mbscott.com/fetchang.htm or http://www.estate-planning-and-advice.com/html/articles.php3/artID=84&at=s

The IRS link is http://www.irs.gov/formspubs/article/0,,id=109876,00.html  look for “Estate Tax Reduction”, form http://www.irs.gov/pub/irs-pdf/f706.pdf   or http://www.irs.gov/publications/p17/ch13.html (for inherited IRAs: http://www.irs.gov/publications/p17/ch18.html

Time Magazine has a story on this in the March 8, 2004 issue.

For more information from the General Accounting Office, see publication OGC-97-16. It ispublished through the United states General Accounting Office, Washington, D.C. 20548-0001.

HRC issued this release on March 14, 2005:

  1. Unmarried couples pay taxes on their partner's health insurance that is provided by thier employer
  2. You can't use your flexible medical account for your partner's medical costs
  3. Your retirement benefits for your partner will be taxed higher than a married couple
  4. Children of same-sex parents may not be recognized as dependents for tax purposes

            There are some "drawbacks" to marriage, some of which involve the trustworthiness of the spouse. This list includes:

 

(1)   The "marriage penalty," which sometimes prevents separate filing of returns which would be beneficial when both spouses have roughly equal incomes. The penalty comprises two components: (a) a standard deduction which is less for the couple than the sum for two individuals, and (b) the fact that a combined income may put a couple in a higher tax bracket. But, of course, eliminating the "marriage penalty" mathematically amounts to a "singles' penalty." Nevertheless, Congress is preparing a "marriage penalty" reduction or elimination in 1999 and 2000 (as of July 21 2000 it has passed both houses but may be vetoed by President Clinton). The conventional wisdom is that the marriage penalty hurts a couple with two approximately equal incomes, whereas there is always a marriage surplus for a one-earner household. But Senator Orin Hatch claims that even a single-earner couple is penalized as much as a double-income couple, because mathematically the married couple owes the same tax regardless of the distribution of the earnings, but a couple with one member having no income would not, if filing as two singles, be able to claim two single standard deductions. Democrats have suggested a quasi-libertarian solution of allowing any married couple to compute the tax both ways and choose the best one.  Some liberals have claimed that easing the marriage penalty mainly benefits the well-off.  Some conservatives have claimed that the measure will encourage singles to marry, but then, what about gays (even in Vermont, finally recognizing civil union, not exportable outside the state)?   In “The Marriage Tax on the Poor,” The New York Times, July 21, 2000, page A19, columnist David Riemer points out that couples getting the earned-income tax credit are penalized when married because the partner’s income is counted against eligibility.   The marriage penalty is greatly reduced as of the 2003 tax season, and again at the end of the 2004 season.[2]

(2) The liability for the partner's income taxes when filing jointly (and sometimes for other debts), not always abrogated by the partner's "ignorance."

(3) The enormous financial cost of divorce ("palimony" judgments in non-married couples are still rare)

(4) In community property states, loss of control over assets earned during the marriage.

(5) In some cases, married couples working for the same company may be considered as "individual employees" when requesting family leave.

(6) When purchasing a spouse's (and particularly an entire family's) health coverage through the workplace, take-home pay is substantially less than a single person's even though the employer has shelled out more - unless the employer pays almost all the premiums. Contributory premiums for (additional) spousal and for higher salaries; employers obviously shell out more for associates who elect family coverage family coverage tend to be high. However, employers shell out less for workers who already have coverage through their spouses, which might enable such workers to bargain for higher salaries. And employers who provide even contributory family coverage are spending more to employ people with families than to employ singles, and are at least offering a benefit not available to those who cannot legally marry adults of their choosing. Some heavily unionized companies do pay the entire premiums for their employees' coverages. This practice really does amount to paying people with "families" more for the same work. When a union at Honeywell struck over a Honeywell proposal to require new employees to contribute towards their health insurance premiums, the union put gay employees in the position of supporting (through striking) a demand that actually discriminates against them!

(7) Many companies have nepotism rules that affect hiring of spouses (but perhaps not of "lovers").  Furthermore, conflict of interest rules often cover a spouse's ownership of stock in a competing company (or, a spouse of an accounting firm's partner owning stock in any company that the company audits: Floyd Norris, "Accounting Rules and Accountant Can't Understand," The New York Times, Jan. 7, 2000). 

(8) Gay couples, since they are not married, may be able take advantage of the “grantor retained income trust” (GRIT),  and “irrevocable trust established for a fixed term in which the grantor retains all of the income generated.” (Worth article mention in (34) above). GRIT assest are sheltered from taxation while the grantor lives. Legally married couples cannot use these.  

----

 Do single, married people, and people with dependents get equal pay for equal work? Here are some of the ways marriage can be a definite plus in the workplace (even though the intentional "family wage" is still illegal according to Department of Labor rules). Remember, perks for some employees effectively come out of the pockets of others. 

(1) In situations where the employer pays all of health care costs (sometimes done under union contracts or in "hot" industries with sudden demands for workers), the married worker electing family coverage gets more compensation for the same work. A couple with one spouse able to get fully-paid health care coverage in the salaried workplace is in good shape indeed.

(2) Some employers are still more likely to promote married workers (men), although married male workers (especially those with stay-at-home wives or with many children) tend to be more aggressive in seeking promotions.

(3) Some employers "ask" for more on-call coverage from employees without dependents (or less choice of available shifts).

(4) Married employees or employees with children are more likely to take advantage of work-at-home policies.

(5) Some employers offer subsidized day care and paid maternity or paternity leave.

(6) In the past, married employees were sometimes allowed to charge more expenses on trips, although this is very rare today.

(7) There is some popular and media pressure (as from the National Partnership on Women and Families) for states or for the federal government to require employers to offer some paid maternity leave. The United States is one of six developed countries that does not, according to ABC News (World News Tonight, Feb. 16, 1998). Typical in other countries is 75%-100% maternity leave pay for 8-16 weeks. As much as we want to help mothers, however, such a measure would be using the power of the state to force people who do not have children help support people who do choose to have and raise children. (For employers to choose to do this on their own is another matter!) Actually, employers who offer paid short-term disability sometimes pay for some medical maternity leave (before birth), although they may also pay for off-work periods because of AIDS, too.

One practical way to do this could be to require that paid short term disability insurance plans cover maternity, care for a sick family member, and the like, at least with partial pay. (New Jersey already does this.) This would cost about $20 a month for the typical coverage (80%) per worker, whether the worker was likely to take advantage of it or not and whether the employer paid or not. This might seem fairer, because almost anyone could be in a situation of need to take care of a family member. It could put psychological pressure on "only children" like me to remain more attentive to family loyalties.

Ann Crittenden, in The Price of Motherhood (Henry Holt, 2001), has argued that our whole notion of prima facie calculation for the value of work is skewed, in that the labor of motherhood (or for that matter fatherhood) is not paid at all but viewed as a personal privilege and obligation. Hence, better educated women resist having children at all (up to 28% of college-degreed women refrain from pregnancy). Her view is that the entire economy (including the conventional idea of women’s opportunities in the workplace and of breaking the glass ceiling) “freeloads” on the backs of parenthood.  But then this argument doesn’t acknowledge that (outside of adoption) parenthood starts with a voluntary act, sexual intercourse.  Harsh indeed.      

 (8) On the other hand, some employers offer singles a choice of other perks, such as sabbaticals or longer vacations.

Note that Domestic Partnership registration, available in some communities, does not provide all the benefits of marriage. Health insurance is purchased with after tax dollars. Sometimes there are considerable residency or waiting period requirements, not applied to heterosexually married couples. Sometimes there may be liability for a partner's actions. Generally, employers that offer same-sex domestic partnership benefits have found that actuarially that do not cause excess claims (as from AIDS) when compared to conventional families with children.

The April 2001 of Resource, a publication of LOMA (Life Office Management Association) contains an article by Stephen Hall, “More Companies Offering Domestic Partner Benefits” and traces the concept (emphasizing the lack of pre-tax benefit) from its relatively negative image (the supposed AIDS health insurance risk, which is really less than most childhood associated medical problems in cost) to practical value today as companies need a competitive workplace.    

 Readers may want to look at the subject of “Closed-loop relationships” between married couples with gay men married heterosexually, Jane Gross, “When the Beard is Too Painful to Remove, The New York Times, Aug. 3, 2005, E1.  

The bottom line is, should one kind (sexually complementary) of adult sexual relationship be subsidized by those who don't have or enjoy such a relationship?

Back to DADT book Chapter 5 footnotes and Chapter 5 text .  See also Elinor Burkitt’s Baby Boon book review

Back to same-sex marriage essay

Back to doaskdotell home page

           

           



[1] An up-to-date view is the column by Albert B. Crenshaw, “Cash Flow: No Gay Marriage Benefit at the Federal Level,” The Washington Post, Business, p. F4, Dec. 22, 2003.