If you are married and live in New York or any of the other 13 jurisdictions in the United States that recognize same-sex marriages*, the death of Section 3 of DOMA (the Defense Of Marriage Act) means that, if you are a married gay or lesbian couple, you will enjoy all of the rights and responsibilities of a heterosexual married couple. 

Prior to the Supreme Court’s ruling that DOMA is unconstitutional, if you were a legally married same-sex couple, DOMA denied you federal benefits. Among the many results of this law, such couples had to file separate state and federal income tax returns.  In addition, if one partner in the married couple died and left a significant estate to the surviving partner, the surviving partner was required to pay significant estate taxes. In fact, this particular situation in the Windsor case prompted the challenge to DOMA that was decided by the Supreme Court on June 26, 2013. 

Based on the Court’s decision, you might think that the matter is over and that we are now past this issue. However, this is not the case. If you are a legally married gay or lesbian couple and move to a state that does not recognize the right of a same-sex couple to marry, will you still be legally recognized as a married couple in your new state of residence and have all of the rights of a legally married couple? 

The answer is not clear at this time.  In the Windsor case, the Supreme Court did not address section 2 of DOMA. Section 2 provides that a state is not required to recognize the marriage of a couple that was married in a state that allowed such marriages. Under Article IV, Section 1 of the United States Constitution, known as the "Full Faith and Credit Clause," each state is required to recognize laws of another state. This clause should require a state that does not provide for same-sex marriage to recognize the marriage of a couple legally married in another state. However, until the Supreme Court addresses this issue, each state will be free to do as each pleases. 

Although the Supreme Court struck section 3 of DOMA down as unconstitutional, there is still a question about the ability of many same-sex couples to receive federal rights. Say you are a same-sex couple, married in New York, and then move to Florida, a state that does not recognize your right to marry. It is clear that you will not be able to get any benefits afforded under Florida law to married couples, but how about federal benefits? Since DOMA is gone, you would think that you will at least be able to receive federal benefits; but this may not be the case. Some federal benefits are based upon where you are married, and some are based upon where you reside. Accordingly, you will be entitled to receive the benefits that arise from the place of your marriage. However, you will be out of luck with regard to the benefits that arise from your state of residence. 

You can expect legal challenges to be brought by legally married same-sex couples who move to states that do not recognize their marriages. This issue will work its way up through the courts until it reaches the Supreme Court. Hopefully, the Supreme Court will accept one or more of these cases and will finally decide that all couples, regardless of their sexual preferences, have the right to marry and have the same legal rights and responsibilities, regardless of where they reside within the United States. 

*The following U.S. jurisdictions recognize same-sex marriage at this time: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington and Washington D.C. In addition, five Native American tribes have made same-sex marriage legal.