The Ethicist column of the New York Times (11/27/10) answered a query from a lesbian couple that raises an interesting legal question. The writer asked whether her partner is ethically bound to reject government aid that would be denied to her if their marriage was recognized – -but which she can qualify for because the federal government doesn’t recognize their marriage.
The response rightly stated that since the term “single” is a technical term which is legally defined, and because the agency the partner is dealing with considers her single, she is entitled to receive the aid. In effect, he is saying that because the government discriminates against her as a lesbian, she has no ethical duty to “balance the scales” by applying stricter standards on herself than the government does. If the government considers her unmarried, then she is entitled to the benefits that are bestowed amongst unmarried persons.
There is one recent legal change that could create some problems for the partner, depending on where she lives. As of May 2010 the IRS has decided (rightly so, as it turns out) to recognize community property income as being earned 50/50 by each partner, regardless of who receives the paycheck. Thus, each partner must report 50% of the total community property income — and because the couple is considered unmarried, their taxes are actually lower than a straight couple would pay. However, when the non-earning partner submits her tax return to the government agency, they will see that she actually has earnings, in the form of her 50% of the partner’s community property income. That income may disqualify her from the benefit – not because she is married, but because she has a right to a share of her partner’s income as community property.
If that is the case then the non-earning partner will be disqualified from the benefits — which might seem unfair, but is fully legal!