Cuomo signs "New York Marriage Equality Act

Governor Cuomo signed the "New York Marriage Equality Acton Friday, June 24 of 2011. The Act is contained in two chapters, Chapters 95 and 96. The significance of Chapter 96 is that if the protections afforded members of the clergy for failing to perform same-sex marriages are invalidated, the entire Act is invalidated.

The act is effective on the 30th day after it becomes a law - July 24th.

The act adds a provision to the Domestic Relations Law to the effect that a marriage that is otherwise valid shall be valid regardless of whether the parties are of the same or different sex. Marriage licenses cannot be denied on the grounds that the parties are of the same or different sex.

The act does not provide cross-references to various statutory provisions dealing with marital status. The Act does, however, provide that "no government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy or any other source of law, shall differ based on the parties to the marriage being or having been of the same rather than a different sex.

Notwithstanding the lack of any explicit reference to New York statutory provisions relating to inheritance and estate administration, the legislative intent of the Act makes clear that same-sex spouses have the same legal rights with respect to inheritance (family exemption, elective share) that different sex couples previously had. Similarly, any preference previously accorded a spouse to serve as administrator will be available to the surviving spouse of a same-sex marriage.

Technical Memorandum

TSB-M-11(8)C - The department discussed the effect of the marriage equality act on "all taxes administered by the Tax Department.

As to the income tax, same-sex married couples must file New York personal income tax returns as married. To compute New York income tax, couples must recompute their federal income tax as if they were married for federal purposes.

Same sex couples married as of December 31, 2011 will be considered as married for the entire year.

The department indicated that the Marriage Equality Act is not retroactive; so, a couple legally married in another state prior to July 24, 2011 may not use a married filing stauts before the 2011 tax year.

As for estate tax, the Department indicated that the taxable estate must be computed in the same manner as if the deceased individual were married for federal estate tax purposes. Regardless of whether a federal estate tax return is filed, the same deductions and elections available for different-sex spouses are available for same-sex spouses.

The department indicated that the act applies for estates dying on or after July 24, 2011.

TSB-M-11(8)M amplifies this discussion regarding estate taxes. Additional guidance will be posted on www.tax.ny.gov as it is developed.