Thanks to an Iowa Supreme Court decision, gay marriage has been mandated under the Iowa constitution. The court decision upheld a lower court ruling from 2007 that stated the Iowa laws surrounding marriage being only between a man and a woman were void under the Iowa state constitution’s equal protection clause.
“Richard Socarides, an attorney and former senior adviser on gay rights to President Clinton, said ruling carries extra significance coming from Iowa. "It's a big win because, coming from Iowa, it represents the mainstreaming of gay marriage. And it shows that despite attempts [to] stop gay marriage through right wing ballot initiatives, like in California, the courts will continue to support the case for equal rights for gays," he said.” (Iowa Gay Marriage Ban Unconstitutional, CBS online news, April 3, 2009).
Yes, it is time to celebrate an important victory for social equality. And while the ruling is a big step forward, it is important to note the actual rights partners will receive under the law as spouses. The actual rights bestowed during marriage are often far less than people believe. Aside from acknowledgment of their relationship, the four main areas of rights domestic partners typically seek are:
1) bringing assets together as one family unit
2) empowering each other to make medical and financial decisions
3) allowing for full inheritance by the surviving partner
4) tax breaks enjoyed by heterosexual married couples
Most people assume they get all of these rights when they get married. After all, why has gay marriage been so hyped for all of these years? Unfortunately, they are wrong… either completely wrong or partially wrong. Here are the actual rights obtained under Iowa law for married couples as they relate to the four areas.
Bringing Assets Together as One Family Unit
Most partners wish to bring all of their assets and possessions together so “what’s mine is yours and what’s yours is mine.” Unfortunately, the largest impediment is federal law and not state law. When hetero married couples decide to retitle their home, accounts, and possessions so they are owned jointly with a right of survivorship, there are no tax implications. When married same-gender couples in Iowa (or Massachusetts or Connecticut) retitle their assets as joint with a right of survivorship, they run up against a federal gift tax.
The federal gift tax is imposed on all transfers in excess of $13,000 in any given year. Every house, account and other assets retitled from one partner to the other is a gift of half of those assets. If that “half” exceeds the $13,000 limit, then federal gift tax forms have to be filed. For example, if Joe and James are married in Iowa and then James retitles his $300,000 home so he and Joe are joint owners, then that is a gift of $150,000, only the first $13,000 of which is exempt. (For more information on the gift tax, please download the complimentary report at www.domesticpartnergifttaxes.com). Of course, federal law exempts all married hetero couples from these gift taxes.
Empowering Each Other to Make Medical and Financial Decisions
Here, gay marriage does impose some substantive rights on domestic partners. In Iowa, Massachusetts and Connecticut, when same-gender partners marry, they become first in line to make medical and financial decisions for each other. Unfortunately, the scope of these decisions is limited or dependent on court action.
If one married partner becomes ill and can not make medical decisions in Iowa, their spouse makes those medical decisions for them. Under Iowa statutes in absence of a healthcare power of attorney, the next of kin makes decisions and the spouse, even a same-gender spouse, is the closest living relative. Unfortunately, same-gender married couples in Iowa, Massachusetts and Connecticut better not travel outside of those states and become ill, because most other states do not honor Iowa's marriage laws.
The same rules governing the Iowa partner being the closest relative for healthcare also follows with financial decisions, but it is by no means automatic or as widespread as people think. Private contracts and account ownership takes precedence over state empowerment laws, and every form of business entity from banks to cell phone companies insist on dealing only with the person on the account. Without a power of attorney, the spouse has to go through a court process to be appointed the legal guardian of their spouse in order to make most financial decisions. Yes, the spouse is first in line in the court process if someone is incapacitated, but being the first in line to go through a costly and time-consuming competency hearing is not a benefit when a power of attorney handles it quickly and painlessly.
Part II concludes in the next blog...
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Posted by: dissertation write up | April 06, 2009 at 02:42 AM