“Common Law” Marriage Equality for Same Sex Couples

April 27, 2016
Posted in Family Law
“Common Law” Marriage Equality for Same Sex Couples

Under Pennsylvania law, there is no inheritance tax due on transfers of property to a surviving spouse.  Yet, prior to the legalization of same-sex marriage in Pennsylvania in 2014, surviving partners of same-sex relationships were treated as “legal strangers” and required to pay a fifteen percent (15%) tax on inheritances received from their partners.  While same-sex couples may now legally marry, there continues to be inequality for those same-sex couples whose partner died before they could legally marry.

Hamburg Rubin attorneys recently represented two surviving spouses of same-sex relationships whose spouses died shortly before and shortly after same-sex marriage became legal in Pennsylvania.  Even though the spouses exchanged marital rings and vows, lived together for twenty and thirty years, owned homes together, co-mingled all of their assets, and were considered by family and friends to be married, the surviving spouses were classified as “legal strangers” and required to pay inheritance tax at a fifteen percent (15%) rate.

In a series of appeals and petitions filed with the Pennsylvania Department of Revenue, Hamburg Rubin attorneys proved that the surviving spouses formed valid common law marriages under Pennsylvania law.  The attorneys persuasively argued that denying surviving spouses of same-sex relationships the opportunity to assert the existence of a common law marriage would violate the spouse’s rights under the equal protection and due process clauses of the United States Constitution.  The petitions and appeals were accompanied with hundreds of pages of supporting evidence showing that the couples had indisputably established a common law marriage.  Underpinning the legal and factual argument, however, was the principle of basic fairness.

In both cases, Hamburg Rubin attorneys were successful, securing refunds for their clients and official recognition of same-sex common law marriages. These decisions mark a significant departure in the Department of Revenue’s official protocol when it comes to common law marriage claims from surviving partners of same-sex relationships.

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