Gay Marriage Law: Striking a Delicate Balance

By Rick Kraft | Published on September 7, 2011 | 0 Comments

As a lawyer in Boston dealing with gay marriage and many other issues affecting same-sex couples, Rick Kraft has been working in an up-and-coming field of law. From his leadership post at the Kraft Law Offices, Kraft has been at the forefront of this legal field, and explains that there are subtle but critical distinctions between operating as a Boston gay marriage lawyer and operating as a lawyer for heterosexual couples.

The biggest issue, says Kraft, that separates Boston gay marriage lawyer’s work from straight marriage work is that the federal government does not yet recognize gay marriage. While many states do recognize these marriages, the federal government ignores a gay marriage, so spouses are treated as completely unrelated parties.

In order to provide the best legal services to his gay married clients, Kraft says he must astutely weave together the right combination of legal provisions to take advantage of all state law rights married couples enjoy, while also establishing the best possible provisions under federal law. This work requires precise drafting to satisfy the requirements of inconsistent and conflicting legal systems. For example, Kraft says that as a Boston gay marriage lawyer, he has to be careful not to run afoul of federal tax codes, where many benefits available to married couples trigger federal tax liabilities if applied to unrelated parties or same-sex spouses. One area where this occurs frequently is in transfers of property between spouses. Married couples can pass an unlimited amount of property and assets between themselves without any tax impact, but any transfer worth more than $13,000 between unrelated parties has federal gift tax implications and must be reported as a taxable gift, says Kraft. Since federal law treats same-sex spouses as unrelated parties, transfers between spouses can create major problems – and tax liabilities – if not handled properly. Proper provisions in legal documents, such as those Boston gay marriage lawyer Kraft creates for his clients, can minimize (and often eliminate) any tax which otherwise would be payable as a result of transfers between same-sex spouses.

Similar issues arise in relation to legal and medical decision-making for an incapacitated spouse. Again, proper drafting can ensure that same-sex spouses enjoy all the rights and privileges of marriage which other couples take for granted – even when those rights are created through individual legal documents instead of general application of marriage law.