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Understanding the post-Windsor rights of Pennsylvania same-sex couples

In June, the Supreme Court of the United States issued a decision in United States v. Windsor that struck down portions of the federal Defense of Marriage Act. As a result, the federal government will now grant full recognition to same-sex marriages performed where they are authorized by state law.

However, the Supreme Court did not strike down the portion of DOMA that allows states to refuse to recognize same-sex unions performed in other jurisdictions. As a result, same-sex couples in states - like Pennsylvania - that do not permit same-sex marriage will end up with a patchwork of family law rights and protections.

Pennsylvania couples will be able to secure some federal rights, such as the ability to file federal taxes jointly and inherit without incurring estate tax liability, by marrying in a state that allows same-sex marriage. However, because Pennsylvania has its own state-law version of the Defense of Marriage Act, the state will not recognize these marriages when the couple returns home.

This means that the couple will continue to be without the state law rights and benefits granted to married couples. It also means that the couple will be without the protections afforded by Pennsylvania's divorce law in the unfortunate event that they break up.

However, they may not be able to divorce in the state where they married, either. Most states require at least one spouse to have been a state resident for a certain period of time before a divorce will be granted. New York, for example, requires one spouse to have lived in the state for at least a year before he or she can file for divorce. On other hand, some states - including California, Vermont and Delaware - allow non-resident same sex-couples to divorce so long as their marriage was performed in the state where the divorce is sought the couple's home state will not perform a divorce. Most of these states require other conditions to be met as well.


It is possible that Pennsylvania's ban on same-sex marriage may be short lived, even if the legislature does not take action.

In July, several Pennsylvania same-sex couples filed a lawsuit challenging the constitutional validity of the state's same-sex marriage ban. They are asking for the law to be thrown out on the grounds that it violates their rights to due process and equal protection.

Pennsylvania Attorney General Kathleen G. Kane has publicly stated that she believes the state's DOMA law to be unconstitutional, and that she will not defend it in court. It remains to be seen whether she will appoint another official to defend the law on her behalf.


Until same-sex marriage is recognized in Pennsylvania, couples will need to take proactive steps to protect themselves. An experienced family law attorney can help couples draft a partnership agreement that provides some meaningful legal protection, both during the union and if the couple separates.

It is also advisable to seek the counsel of an experienced attorney if a Pennsylvania same-sex couple plans on marrying in another state or seeking a divorce in a different jurisdiction. The attorney will be able to review the couple's unique situation to help them choose the path that will best protect their rights.