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Legal Consequences of Marriage

originally posted: July  8, 2004
last updated: September 22, 2008

Summary: 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 responsibilities are. 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 people involved. 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 individuals. 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 American Indian?

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 report 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:

  • Taxes: Taxes are different for married couples. Tax law treats a married couple almost like they were one person. This has advantages and disadvantages:

    • Income Taxes: If two people with fairly high incomes marry then they usually end up paying more taxes. That's because with their incomes added together, they end up in a higher tax bracket than they were individually. This is the "marriage penalty" that people talk about a lot. It isn't always a penalty though. If one partner does not work, their taxes are likely to be lower.

      People on Social Security also end up paying higher taxes on their Social Security income if they marry. For this reason "living together" rather than marrying has become more popular among senior couples.

    • Gift Taxes: Ordinarily, if someone gives you more than $11,000 in a year, then you have to pay gift taxes on that money. But gifts between married people are always tax free. Furthermore, a married couple can make tax free gifts to other people (including their children) of up to $22,000 a year, even if only one is earning income.

    • Estate Taxes: Only millionaires ever have to pay estate taxes, but if you are a millionaire, being married is a big advantage because you can leave money to your wife tax free, and the portion of what you leave to your children that is exempt from estate tax is twice as high (currently two million dollars instead of one million dollars).

    • Employer Taxes: If you work for your spouse, you are not their employee. They don't have to pay social security taxes or unemployment taxes on your behalf.

  • 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 policies.

    On the other hand, if your spouse cannot pay their health care bills, then you can be held liable for the cost.

  • Judicial: Married people cannot be required to testify against each other in court.

  • 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 assistance. 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 of duty. 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.

  • Bankruptcy: 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 immigration quotas. 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.

  • Divorce: 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 jobs. 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.

  • Parenthood: 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 effected.

  • Adoption: 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.
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, and adoption.


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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