Advice: Marriage, Taxes and Pre-Nups

Answers to Your Real-life Legal Problems

Dear Yetta,

My partner and I took advantage of the recently passed marriage equality law in New York and tied the knot. I am trying to make plans for the end of the year and I’m assuming we will file our tax returns jointly. Is there anything I should know about doing so? And, we did not sign a prenuptial agreement—is that something we should have done? Is there anything I can do about it now?

-Planning for the future

Dear Planning,

First, congratulations on your nuptials. As a newly married couple recognized under the laws of New York State, you are now entitled to enjoy the rights and benefits bestowed upon any married couple, equal to your heterosexual counterparts. However, because the federal Defense of Marriage Act still exists, you are still considered single for purposes of federal taxation. To add insult to injury, New York State follows federal designation when it comes to taxes. Therefore, since you are not allowed to file jointly for federal taxes, you are barred from filing jointly for your New York State taxes too. Sound ridiculous? It is, but as they say, sometimes fact is stranger than fiction.

In addition to the rights and privileges bestowed on married couples in this state, many obligations come with this status. In essence, the law now views you as one combined unit rather than two distinct individuals. Not what you want? Then you should have a prenuptial in place that clearly defines your shared and individual rights and responsibilities. A prenuptial is also helpful because it can provide for terms of separation if you choose to dissolve your relationship. Even though you did not execute a prenuptial before your marriage, you’re still in luck. You can execute a postnuptial after your marriage which, if executed properly, has the same weight and effect of a prenuptial.

Good luck,

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*This column is not a consultation with an attorney and should in no way be construed as such or as a substitute for such consultation. Anyone with legal issues or concerns should seek the advice of her own attorney.

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