Wells Fargo Advisors LGBT Insight: State Boundaries and Immigration Issues

Wells Fargo Advisors' Toni Taft offers guidance for same-gender couples who married in one state but live in another, or where one spouse is a U.S. citizen and the other is not.

Toni L. Taft, CFP®, AAMS® - Senior Vice President - Investment Officer with the Accredited Domestic Partnership AdvisorTM Designation, Wells Fargo Advisors, LLC in Bellingham, Wash., seeks to address the unique financial challenges faced by same-gender partners. Toni has been legally married to her wife, Janice, since June 2004. They were married in Victoria, B.C., Canada. Their marriage is now recognized by the State of Washington. You can reach Toni at toni.taft@wfadvisors.com and www.wfadvisors.com/toni.taft.


More than a year ago, the U.S. Supreme Court in United States v. Windsor overturned a provision in the Defense of Marriage Act (DOMA) that greatly affected the lives of the LGBT community. Who knew at that time how impactful this change would be on both state boundaries and immigration issues? While the federal government makes the decisions about immigration, the rights afforded to the LGBT community when crossing state lines are dictated by state laws. These topics need to be considered separately as there are many issues to be considered for LGBT couples and their families.

State vs. Federal Boundaries—Qualifications

LGBT couples must be married in a jurisdiction that recognizes same-gender marriage. Most federal agencies define this as the "Place of Celebration" (where the couple was married). The "Place of Celebration" determines whether the marriage is legally valid for immigration purposes. The "Place of Domicile" (where the couple lives) affects the rights of LGBT couples in their state of residence or when traveling to other states. It may also affect a few key federal programs such as Social Security and VA benefits. PLEASE NOTE: Other types of legal recognition currently available to the LGBT community (domestic partnerships and civil unions) do not qualify for these federal spousal benefits at this time.

State Boundaries

Many rights are afforded to married couples that are granted by the state. For those LGBT couples living in a state that recognizes their marriage (recognition state), they are afforded the same rights as any other married couple. One of the most significant is the automatic right to make medical decisions for your spouse when they are unable to do so, and to visit them in a hospital when they are in critical care. These rights are only afforded to a spouse or, in the spouse's absence, their immediate family.

What happens to same-gender married couples who travel and cross state boundaries into a state that does not recognize their marriage (non-recognition state)? Even though they are legally married in their own state, the non-recognition state does not honor their rights as a married couple because their marriage is not valid under the non-recognition state laws. This can be devastating in the case of a medical emergency where the spousal rights are imperative.

The difference in rights between recognition-state and non-recognition-state laws emphasizes the need for LGBT couples to complete legal estate-planning documents to protect themselves. LGBT couples should consult with an attorney regarding which documents are needed in their situation. While traveling, I carry a copy of the following documents with me (in electronic format) to prove my rights:

• Will and/or Trust: Provides clear instructions for distributing my assets to my spouse, family and other beneficiaries upon my death.

• Durable Power of Attorney: Provides financial authority to another person to act on my behalf.

• Healthcare Power of Attorney: Authorizes the person named to make medical decisions for me in the event I am unable to do so myself. It also allows the person named to visit me in medical facilities where access is limited to my spouse or immediate family.

• Living Will: Expresses my intentions regarding the use of life-sustaining measures in the event of critical condition or terminal illness.

Immigration

Investment planning for LGBT couples requires a determination of their legal status regarding marriage. This is especially important when the marriage is between U.S. citizens or lawful permanent residents and foreign nationals. According to the former Secretary of Homeland Security, Janet Napolitano, she "directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse."All married couples are now treated equally in the administration of immigration laws.

Family reunification is one of the hallmarks of the immigration system. The court's historic ruling now allows LGBT couples the ability to file for immigration visas for their spouses, fiancé(e)s, and unmarried children under 21 years of age to help prevent the separation of their families.

While the recognition of these federal benefits is a welcome development, the complexity of the issues requires expert assistance. As a result, it is important to work closely with attorneys specializing in estate planning and immigration issues about your specific situation. See below for a few helpful resources on this topic.

U.S. Department of Homeland Security – Same-Sex Marriages: http://www.uscis.gov/family/same-sex-marriages

U.S. Department of Homeland Security - Implementation of the Supreme Court Ruling on the Defense of Marriage Act: http://www.uscis.gov/news/alerts/implementation-supreme-court-ruling-defense-marriage-act

Lambda Legal – After DOMA: Immigration: http://www.lambdalegal.org/publications/after-doma-immigration

This communication is designed to provide accurate, authoritative information. Wells Fargo Advisors is not engaged in rendering legal, accounting or tax advice. If legal, accounting, or tax assistance is required, the services of a competent professional should be sought. The hiring of a professional is an important decision and should not be based on advertising.

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