Seeking Clarity: Shifting same-sex marriage laws


James Phelps may be director of development at Portland Jewish Academy and the Mittleman Jewish Community Center, but when it comes to taxes, he has problems. He and his partner originally filed both state and federal returns individually. When Oregon passed the Domestic Partnership law, he filed state taxes jointly and federal individually, thereby confounding tax preparation software.

Things changed again when he and his partner married in Canada. By this time, the 2013 United States v. Windsor Supreme Court case made federal recognition
of his marriage the law of the land. However, Oregon does not recognize same-sex marriage. If your head is spinning, so is his.

Phelps was among the attendees at “New Legal Issues for Same Sex Couples,” a lecture by Family Law Attorney Christine R. Costantino from Samuels Yoelin Kantor, LLP. As part of the Oregon Jewish Community Foundation’s Professional Advisors Group series, the Oct. 24 gathering at the Multnomah Athletic Club attracted 50 people seeking clarity amid a rapidly changing landscape.

Costantino began by reviewing the series of laws that have affected the state’s same-sex relationships beginning with domestic partnership rulings. These ironically started with contention between an opposite-sex couple in 1978. In 2007 the Oregon Family Fairness Act granted same-sex couples who register as domestic partners the same rights, privileges and responsibilities as married couples in Oregon. Meanwhile, on a federal level, Congress enacted the Defense of Marriage Act (DOMA) in 1996. In the 2013 United States v. Windsor case the Supreme Court declared the DOMA section defining marriage as between one man and one woman unconstitutional. As of this writing, marriage is marriage according to federal law, but at a state level – not so fast. In 2004 Oregon amended its constitution to define marriage as between heterosexual couples.

Yes, this is being challenged by a ballot measure and a lawsuit. Furthermore, a memo written to state agency directors by chief operating officer for state government, Michael Jordan, stated that on Oct. 16, 2013, the Oregon Department of Justice ruled “Oregon agencies must recognize all out-of-state marriages for the purposes of administering state programs. That includes legal, same sex marriages performed in other states and countries.” But bottom line, Oregon’s constitution could remain an issue.

“For now, we are advising our same-sex clients who reside in Oregon and have decided to marry to register as domestic partners in Oregon in order to guarantee their rights under state law, and to marry in jurisdictions which allow same-sex marriage, like Washington or California, to avail themselves of the federal rights and benefits of traditional spouses,” Costantino said. She also emphasized the importance of professional estate planning and urged same-sex couples to travel with a copy of
their advance directives since state laws vary and emergencies happen.

“For same-sex couples, the law is Swiss cheese with lots of holes,” Phelps said. “This ball is moving along faster than anyone anticipated. Christine (Costantino) clearly pointed out that in this time of flux, it’s even more important for same-sex couples to have a plan. What happens if one partner gets sick? You need a will and medical power of attorney. Make sure property goes to your surviving spouse, or relatives may swoop in. Who are your life insurance beneficiaries, and will property pass to a surviving spouse? Sit down with your attorney and look ahead.”

Contact Christine Costantino at 503-296-2966 or chris.costantino@samuelslaw.com. The OJCF Professional Advisors Group meets three times a year to learn about tax and legal issues important to advisors working with donors in our Jewish community. It also serves as a networking platform for estate attorneys and financial planners, and is an opportunity to share news about the impact of the OJCF. Sponsors are First Republic Bank, Rosenbaum Financial, LLC, Oregon Angel Fund, and Brian Suher, Sr. Vice President, RBC Wealth Management.

For more information about OJCF visit ojcf.org or call 503-248-9328

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