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Same-sex couples in financial limbo until Supreme Court rules

Anna Robaton, special to CNBC.com

Next month, the U.S. Supreme Court is expected to hand down rulings on several cases that could result in what supporters of same-sex marriage call "a 50-state solution." But until same-sex marriage is legal throughout the country, gay and lesbian couples who have already tied the knot will continue to face a raft of challenges as a result of the uneven legal landscape.

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Same-sex marriage is now legal in 37 states and Washington, D.C. That's the good news for supporters of marriage equality. The bad news is that the status quo has given rise to a number of dilemmas for married gay and lesbian couples when it comes to taxes, retirement and estate planning, divorce and other matters.

"You can be married in one jurisdiction and assume that you and your partner have certain rights, such as the right to inherit assets from one another or to make medical decisions for your partner if that person can't act for themselves," said Elizabeth Schwartz, a Miami-based lawyer and advocate for the lesbian, gay, bisexual and transgender (LGBT) community.

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"Then, you go to another jurisdiction and find that you are legal strangers to one another because your marriage isn't recognized there," added Schwartz.

Heading off muddy legal issues

The fact that same-sex marriage is legal in some places and not others makes it especially important for married gay and lesbian people to have certain legal documents in place, including a will and an advanced directive, Schwartz explained.

One type of advanced directive is a durable power of attorney for health care, which permits you to name someone to make health-care decisions for you if you can't act for yourself.

When it comes to taxes, married gay and lesbian couples often have to jump through extra hoops.

Due to the 2013 Supreme Court ruling that struck down part of the Defense of Marriage Act, same-sex couples who are legally married are now treated as married for federal tax purposes, even if they happen to live in a state that doesn't recognize their union. At the federal level, they can file tax returns as a married couple and get the same exemptions as heterosexual married couples when it comes to estate and gift taxes.

At the state level, things can get more complicated. According to LGBT legal advocacy organization Lambda Legal, gay and lesbian people who are married in a state that recognizes same-sex marriage but now live in a state that does not are likely to have to file their state tax returns as "single." They may also have to pay state income taxes on spousal medical benefits offered through an employer.

"Taxes are one of the biggest areas of confusion" for married same-sex couples, said Steve Branton, a certified financial planner and senior planner at Mosaic Financial Partners.

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In Michigan, more than 300 gay and lesbian couples got married during a brief period in 2014 when same-sex marriage was legal in that state. Now, many of those couples are perplexed as to how to handle their 2014 state tax returns, said Branton, adding that it behooves some couples to file a six-month extension because the Supreme Court may resolve the issue of marriage equality on a national level in June.

Most federal agencies adhere to the "place-of-celebration rule," meaning that they recognize same-sex marriages performed in states that sanction gay marriage no matter where a couple currently lives. But the Social Security Administration has followed the state-of-residence rule, although it is reportedly reviewing its policy on this issue.

Same-sex marriage argued
Same-sex marriage argued

In the past, married same-sex couples living in states that don't sanction their union have been denied certain Social Security benefits, including retirement benefits based on a spouse's work record and "surviving spouse" benefits. President Barack Obama has called for the Social Security Act to be amended to address this issue.

"Social Security benefits are different [for married same-sex couples], depending on where you live," Branton said. So the "workaround" for couples planning to move to a non-recognition state "is to apply for benefits before you move," he added.

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The Social Security dilemma has made retirement planning difficult for many same-sex couples, said Cathy Pareto, a CFP and president of Cathy Pareto & Associates. Pareto was a plaintiff in Pareto v. Ruvin, one of several lawsuits that successfully challenged Florida's ban on same-sex marriage. Elizabeth Schwartz represented plaintiffs in the case.

Same-sex marriage has been legal in Florida since January, which, among other things, means that married gay and lesbian residents can now qualify for certain benefits that had been off-limits. For instance, same-sex spouses of state employees participating in the Florida Retirement System can now be designated as beneficiaries under the pension plan.

I've seen some horrible situations where people have had to move back with their divorcing spouse to the state where they got married and establish residency in order to get a divorce.
Steve Branton
senior planner at Mosaic Financial Partners

"It is complicated to do a financial plan when one of the pillars of your retirement is a state pension" but you aren't allowed to name your spouse as a beneficiary, said Pareto, recalling one Florida couple that faced this dilemma before same-sex marriage became legal in Florida. The couple had gotten married in Canada.

Ironically, the freedom to divorce is a big issue for same-sex couples. Some states recognize gay marriage but have residency requirements when it comes to dissolving marriages. As a result, some couples end up in a condition that lawyer Schwartz calls "wedlock," unable to divorce because of where they live.

To avoid this unpleasant possibility, some couples tie the knot in states that don't have residency requirements for divorce, which include Hawaii, California, the District of Columbia, Delaware and Vermont.

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"I've seen some horrible situations where people have had to move back with their divorcing spouse to the state where they got married and establish residency in order to get a divorce," said Branton at Mosaic Financial Partners.

Married same-sex couples living in states that don't recognize their unions may also have a more difficult time when it comes to using the courts to ensure that assets are split equitably in a divorce, said Jonathan Robertson, a CFP and advisor with Abacus Planning Group.

"If a traditional family wants to dissolve a relationship, they go to court and the legal process helps to ensure that both parties are protected and that one spouse is not impoverished," Robertson said. "If you are in a relationship that is not recognized by the state, you may have a more difficult time splitting assets."

—By Anna Robaton, special to CNBC.com

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