Gay Couples Pay More for Fewer Benefits

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By Eileen A.J. Connelly, AP Personal Finance Writer

NEW YORK (AP) — After Judy Weatherly lost her job as a director at a mental health clinic, the price she and her spouse, Nancy Burke, had to pay for health insurance skyrocketed.

Married in California in 2008, they had coverage through Weatherly's workplace. Once unemployed, Weatherly qualified for the federal COBRA subsidy to extend her benefits, but the same wasn't true for Burke. This meant that although they were able to pay just 35% of Weatherly's premium to extend her benefits, they must pay full price for Burke — adding up to at least $5,000.

Even when legally married, a patchwork of state laws, combined with a federal law that bans recognition of such unions and varying corporate policies, makes a range of financial matters more complex for gay and lesbian couples than for their straight counterparts.

Take taxes. In states that recognize same-sex unions, couples may file joint state returns and claim the benefits offered married couples.

But the 1996 federal Defense of Marriage Act prevents the Internal Revenue Service from accepting joint returns from gay couples.

"We've been together a long, long time," said Burke, 51, noting they'll celebrate 25 years in September. The Richmond, Calif., couple owns property and has investments together — and items like these factor into how taxes are prepared.

"We have to file individually federally, and then for the state we file a joint return," Burke continued. "In order to do that, we have to have a tax accountant who really knows her stuff."

Research by The Williams Institute, a UCLA think tank focused on sexual orientation law and policy shows the additional costs extend well beyond the price of preparing another tax return. For instance, health insurance benefits for domestic partners are taxed as income, but not for married couples. The researchers found this one item adds, on average, more than $1,000 per year to a couple's tax bill.

Same-sex couples are also disadvantaged when it comes to inheritance and estate taxes. Federal law generally allows married people to transfer an unlimited amount to their spouse at death without paying estate taxes — but not same-sex couples. That rule cost them about $3.3 million last year, according to The Williams Institute.

"The wealthier the couple is, the more costly it becomes," said Jill Hollander, a principal with the Financial Connections Group in San Francisco, who specializes in financial planning for gay couples.

And it's not just government policy. Extra costs can extend into every corner of financial life. Hollander recalled an insurance company that wouldn't recognize domestic partners under homeowners' policies, unless their names were listed on the title to property. That forced couples to also buy renter's insurance.

There are some steps same-sex partners can take to approximate the financial rights of married couples, but many don't think about the issue until they've been together for years.

Betsy Billard, a financial adviser with Ameriprise Financial, said often it takes a major event like a job change or the birth of a child, or some kind of conflict, to prompt couples to act.

"There are lots of couples that don't have the wherewithal to know they have to do it, or the financial ability to go to a lawyer and get it all set up," said Janet Chin of Oakland, Calif., who married Elinor Barron in 2008. "We're lucky enough that we have the finances to set up all the paperwork."

If it's early in the relationship, most professionals advise a couple to have an attorney draw up a cohabitation agreement, similar to a prenuptial agreement. "People don't want prenups because they're not romantic," said Richard Milstein, an attorney with Akerman Senterfitt in Miami. But having one can help avoid messy legal fights if there is a breakup and support what's in other documents, he said.

Other concerns to address include health care powers of attorney, child guardianship or adoption papers, deeds for homes, bank account and investment account paperwork and wills. Inheritance issues are particularly important, because the laws in some states could put blood relatives ahead of partners, especially if the state doesn't have legal marriage or civil unions.

"We wanted to be very clear that we were a couple," said Weatherly, 60. "It was mainly to protect ourselves in case something happened to one of us."

But even after all the paperwork is done, some still worry.

"I'm probably 85% sure that we've got all the bases covered, maybe 90% sure," said Barron, 62. But they live in the Bay Area, where same-sex couples are more accepted. "My 85%-90% surety would fall dramatically if I were living outside this area."

And no matter how good the lawyer or financial adviser, some things can't be copied or approximated — like Social Security benefits.

When a member of a heterosexual couple dies, the surviving spouse can receive benefits based on the deceased's earnings record.

Divorced spouses can also get benefits if they were married 10 years or more. Not so for same-sex couples, even if like Chin and Barron, they've been together for 24 years.

Chin, 60, a former Silicon Valley software executive, recently has been helping her elderly relatives handle some personal finance issues.

The experience has brought the legal inequities to the forefront. Realizing her older female relatives are able to collect Social Security benefits based on their husbands' earnings is upsetting, because she knows that's not the case for herself and Barron.

"Emotionally, people view themselves as a couple," said Hollander. "The laws on the federal level say you are legal strangers."

A 2004 report by the General Accounting Office identified more than 1,130 provisions of federal laws in which marital status is a factor in determining or receiving benefits, rights, and privileges. And it said there may be more.

Even issues like the ability for a spouse to make health care decisions if there is an emergency, or the rights of one partner to inherit property without interference from family members, can be more complicated for same-sex couples.

"Some of our friends have said it's the idea of being married that's more important to them," said Chin. "For me, it's the rights."

President Obama has directed federal agencies to extend benefits to domestic partners where they can. But that applies only to steps agencies can take without repealing the Defense of Marriage Act, said Brian Moulton, an attorney for the Human Rights Campaign.
Any legal relief is likely to take years.

A federal judge on Wednesday heard final arguments in a lawsuit that challenges Proposition 8, the 2008 ban on same-sex marriage in California. The ruling has the potential to leave the gay marriage bans in 44 other states vulnerable to challenges under the Constitution.

Moulton said there are also two cases pending in Massachusetts, where same-sex marriage is legal. One was brought by the commonwealth itself, challenging the federal inequities on behalf of the state's married couples. "Those cases have a real possibility of opening up federal benefits to those (same-sex) couples who live in states where they are able to marry," he said.

But all have a long way to go before the issue could potentially reach the U.S. Supreme Court.

In the meantime, whenever they have to fill out an extra tax form or hire a lawyer to help arrange some way around an exclusion, gay and lesbian couples feel another insult.

"Every time that happens, it's sort of another stab," Burke said. "You're not equal. You're second-class citizens"

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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