Can Same Sex Couples File A Joint Bankruptcy

On October 18, 2012 the United States Second Circuit Court of Appeals found the Defense of Marriage Act unconstitutional. The Defense of Marriage Act restricts the legal benefits of marriage under Federal Law to couples of the opposite sex. In the case Edith Schlain Windsor v United States however, a taxpayer raised the issue of whether a same sex marriage could be recognized for estate tax purposes. The IRS refused to accept this position, but the court ruled in favor of the taxpayer. The judges did not feel that the Defense of Marriage Act was closely related enough to an important government interest to pass the test of constitutionality.

This issue will likely go to the Supreme Court next, so we can hardly consider this a final answer, but with the tendency of appeal courts to uphold the decisions of lower courts, the ruling has a good chance of surviving.

Since the case involved estate taxes the results might seem to be of greatest interest to estate
planning attorneys, who work with same sex couples. However, if the Defense of Marriage Act is thrown out it will affect other areas of the law as well, such as bankruptcy.

Currently same sex couples are not allowed to file a joint bankruptcy. However, if the Supreme Court rules in their favor we would expect joint bankruptcies to become available to same sex couples as well.