Legal Consequences of Marriage
originally posted: July 8, 2004
last updated: September 22, 2008
To understand what we are talking about when we talk about extending
the rights and responsibilities of civil marriage to
gay couples, it is important to understand what those rights and
After some general discussion of what marriage is in a broader sense,
this essay provides a summary of the ways in which married couples are
treated specially by the law.
Marriage is many things at once.
Most fundamentally, it is a deep and loving bond between two people.
The commitment that makes that bond possible can come only from the two
No government, no church, no community can create it.
No constitutional amendment can take the core of marriage
away from any two people lucky enough to find it,
whatever their genders.
However, marriage is not only what happens in private between two
The impulse to marry calls for extending that bond to include
all the parts of your life that are most important to you.
You want your friends and family to recognize that bond, because your
friends and family are important parts of your life.
If you are religious, you will want recognition of your bond from your
God and your church, because they are important parts of your life.
And finally, you want the laws of your nation, which regulate so much of
your life, to also recognize your marriage bond.
Public recognition of a marriage by the community, the churchs and the
government can be interlinked.
Often a single wedding ceremony can formally establish all three.
But they are still fundamentally separate.
You can have a civil wedding without a religious wedding,
a religious wedding without a civil wedding,
and community recognition without either.
In some, but not all, communities
there are already gay couples recognized as being essentially married.
In some, but not all, churchs gay unions are already being blessed.
No government regulation is going to change this,
nor should it.
Only one facit of marriage is actually under discussion when we talk
about legalizing gay marriage:
the recognition of married status under the law.
Shall that facit be available to gay couples, or shall it not?
But what does that mean?
If we say that gay couples are to be allowed the legal rights and
responsibilities of marriage, what exactly are the rights and responsibilities
that we would be granting them?
Legal consequences of marriage
Unfortunately, it isn't simple to identify all the legal consequences
of marriage. There isn't one law that gives a neat little list of the
rights of married couples. Instead there
are references to marriage scattered over thousands of laws. Many of these
don't effect all that many people. Did you know that if you are married to
an American Indian then you may have the right to get health care benefits
from a federal agency called Indian Health Services even if you aren't an
In 1997, when Congress asked the General Accounting Office for a summary
of the Federal Laws that treat married people differently from unmarried
people, their report
turned up 1049 such laws. There are probably more. Even the GAO wasn't
eager to do all the work necessary to make a complete list.
But that's just the tip of the iceberg.
The fifty states each have their laws that frequently
give special rights and responsibilities to married couples.
Connecticut's Office of Legislative Research did a similar
on laws in which marital status was a factor, and found 588 such laws.
Other states probably have about as many, all different from each other,
so on the state level there are probably 30,000 laws relating to marriage.
And who knows what laws various municipalities might have.
Besides that, there are also companies that give different treatment to
married couples. I'm no lawyer, so I'm not sure how legalization of
gay marriages will effect what private companies do, but my guess is
that one way or another, most private companies would eventually fall
in line with government policy.
So, here's my best list of the more significant legal effects of marriage:
It's pretty obvious how most of these benefits would extend to same-sex
couples, if gay marriage were legalized.
The only one that requires any head scratching at all is the matter of
parenthood. If a woman has a baby then I guess that the woman she is
married to would legally be considered a parent to the child. One might
wonder where the biological father fits into this, and that is a potential
can of worms, but it's pretty much the same can of worms that the courts
already regularly deal with in cases of surrogate mothers, sperm donors,
Taxes are different for married couples.
Tax law treats a married couple almost like they were one person.
This has advantages and disadvantages:
- Health Care:
When a person is seriously ill and not able to make their own decisions,
hospitals regularly turn to the person's spouse to make health care decisions,
up to and including whether to disconnect a person from life support.
A person's spouse can often be carried on their health insurance. Even if
your health insurance is not provided by an employer, it is likely to be
much cheaper to insure two people on one policy rather than buy separate
On the other hand, if your spouse cannot pay their health care bills, then you can be held liable for the cost.
Married people cannot be required to testify against each other in
- Government Assistance:
Married people can get higher payments from some government
assistance programs, including Medicaid, supplemental security income, and
federal employee and veteran's disability payments.
If your spouse needs to move to take a better job, and you need to leave
your job so you can stay together, then you can qualify for unemployment
If your spouse is leaving military service, you can get employment
assistance and transitional services.
On the other hand,
there are many government benefits that you can only get if your income is
below a certain level, like housing assistance, veteran's medical benefits,
and educational loans for children. If you are married, the income of both
partners is counted. This may make these programs harder to qualify for.
- Death Benefits:
If your spouse dies, you may be eligable for a wide range of different
benefits. Social Security may continue payments to the spouse
of a deceased person.
Spouses of veterans and federal employees are eligable for death benefits,
as are widows or widowers of many other groups of people, including
longshoremen, railroad workers, and police officers who die in the line
Survivors may continue to receive health care benefits from their spouse's
former employer, and there are many other benefits to survivors,
ranging from renewal and termination rights over a spouse's copyrights to
continuation of a spouse's water rights.
If a married person dies due to negligence, then their spouse may be able
to recover money in a wrongful death lawsuit.
In some cases, remarrying can terminate survivor benefits.
Married couples can file jointly for bankruptcy which can be beneficial.
A former spouse making claims during a bankruptcy has a higher priority.
- Immigration and Citizenship:
Spouses of legal aliens are automatically legal and are not subject to
A non-citizen who marries a citizen can get permanent resident status.
Many countries who restrict emigration to the US still allow people who have
spouses in the US to emigrate, because the US government imposes trade
penalties if they do not.
The legal system often provides mediation services and expedited hearings for
married couples who are breaking up.
After a divorce, a former spouse may be eligable for alimony payments.
"Palimony" is a possibility in some states, but it requires that there be
some kind of contract between the couple for it to work.
- Government Employment:
Spouses of veterans can get preferential treatment in hiring for government
Threats against the spouse of a federal employee are a federal crime.
If you work for the government, conflict of interest
rules in matters relating to your spouse may limit your activities or
require you to make disclosures.
- Retirement Plans:
Changing the benefits in a retirement plan often requires written consent
from your spouse.
- Domestic Violence:
There are state and federal laws relating to the special circumstance of domestic violence. In most states, temporary restraining orders, and similar protective options are available to members of unmarried couples as well as married couples, but apparantly there are some states where they are not.
If a married woman has a baby, her husband is assumed to be the father.
Establishing paternity otherwise isn't particularly hard - generally just
acting like a father to the child will do it, but filing a formal claim of
paternity is advisable.
If an unmarried father dies without a will, his children may not be able
to inherit in some states, or may have only a limited time to make a claim
against his estate. This is not a problem if he has a will. The children's
right to recieve Social Security benefits or life insurance payments is not
In some states, it may be necessary for a couple to be married to be able to
adopt children. This is not true in all states and is rapidly changing.
The legal ramifications of marriage are complex, affecting nearly every part
of life. I discuss some of them in my articles examining various arguments against gay marriage, including the one about marriage and childbearing, the one about gay marriage and polygamy.
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