deathbed marriage

As almost always, the answer is "It depends". As we all should know marriage requires consumation. So it depends on whether or not the IRS has an incentive to raise the issue.

In my non-legal education opinion, the issue of consumation is a personal issue that can only be raised by a party to the marriage and not by a third party. But I could be wrong.

Dick

How exactly is that enforced? I don't want to hijack this into a legal thread, but are you saying a quadriplegic cannot get legally married?

Would it ever even come up outside of one spouse fighting for an annulment? Specifically, how could a third party (children or IRS) possibly challenge "the ability to consummate", if the only likely witness is the surviving spouse?

Wouldn't this (death bed marriage) be simply avoiding, not evading, taxation? (If indeed there even *are* any tax benefits in this case).

-Mark Bole

Had that question myself.

And when one pulls out a dictionary and starts digging into the definition of consummate, things get -- umm -- interesting.

And even more so if you start thinking about gay marriages.

And branching back toward tax issues, could someone remind those of us who never thought to ask: Does the IRS recognize gay marriages as marriages for tax purposes? Do state tax offices do so? Does state A (gay marriage illegal) recognize gay marriages from state B (where it's legal) (or maybe once was legal)?

No. The IRS follows the federal "Defense of Marriage Act" which prohibits any federal agency from rcognizing gay marriages.

Depends on the state.

Regarding the converse situation, California FTB states the following:

"If you entered into a same sex legal union in another state, other than a marriage, and that union has been determined to be substantially equivalent to a California registered domestic partnership, you are required to file a California income tax return using either the married/RDP filing jointly or married/RDP filing separately filing status."

From what I can find, the state attorney general is still in the process of publishing a list of what other states meet this requirement.

-Mark Bole

California's Supreme Court said that it recognizes gay marriages before Prop 8's election (November 2008) and after their prior ruling that such was not forbidden (May? 2008). However, I'm not certain that this position is not in conflict with the plain reading of the "revision" that Prop 8 introduced - as the language said "... shall be recognized only between a man and a woman." Therefore, the marriages may have been valid at the time they occurred but as to whether they should be recognized today is unclear. Only once that's resolved will the issue of gay marriage from other states be applicable.

Oh, nonsense. The California Supreme Court has ruled that those marriages are valid. End of story. Prop 8 did not become effective until November 8, 2008. Marriages legally contracted prior to that date remain valid; the court ruled that Prop 8 did not have retroactive effect.

And the court also ruled that Prop 8 was NOT a "revision" of the state constitution. If it had been, it would have been invalid, because the California constitution can be revised only by a constitutional convention, and not by the initiative process.

Katie in San Diego

As I said, the common language meaning of "... shall be recognized only ..." contradicts what the court actually said, because they do in fact recognize marriages that DON'T have the restriction (namely those prior to the change).

I didn't mean revision in the constitutional sense (such as amendment or replacement). I meant it in its common sense simply meaning change.

Well, my point, Dieter, was that the validity (under state law) of the pre-Nov. 8 same-sex marriages is a done deal. What forum beyond the California Supreme Court is going to decide that issue? That forum has made its ruling and explained its reasoning in a published decision. The ruling may not make sense to you or others based on the "common language meaning" of the initiative, but it is the law in California.

There is a pending petition for rehearing, but it was filed by the plaintiffs asking the court to revise its decision on a technical point having nothing to do with the pre-Nov. 8 marriages.

Katie in San Diego

In particular, New York recognizes gay marriages. (Or, at least, it said it would prior to the vote on Prop 8.)

Seth