Married Same-Sex Couples Can File Joint Bankruptcy Petitions

United We StandWith its landmark decision today in United States v. Windsor, 570 U.S. ___ (2013), the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act, clearing the way for legally married same sex couples to enjoy the over one thousand federal benefits conferred upon married couples in the United States. One of those benefits includes a married couple’s right to file a joint bankruptcy petition.

(To learn about other areas of the law affected by this decision, see The Supreme Court’s DOMA Decision topic page.)

What Was Section 3 of DOMA?

DOMA was a 1996 federal law that  denied federal benefits to gay couples who were legally married in their states. These benefits, which number over 1,000, included Social Security survivor benefits, tax benefits, and  family leave.

What Is a Joint Bankruptcy Petition?

If a married couple files for bankruptcy, that couple can file one petition instead of two separate petitions, and they proceed with one case, instead of two.  This is called a joint bankruptcy petition.  Couples that are not legally married are not allowed to file a joint petition.

For many couples, filing a joint petition has many advantages over filing two separate bankruptcy cases. To learn more, see Nolo’s Filing Considerations for Married Couples topic page.

What Does the U.S. Supreme Court’s Decision Mean?

In some jurisdictions, this won’t be a huge change from business as usual. That’s because on July 6, 2011, the U.S. Department of Justice stated that it would no longer oppose joint bankruptcy petitions filed by same-sex married couples. In theory, this meant that the U.S. Trustee for the different bankruptcy jurisdictions would not oppose such petitions. But in practice, that was not always the case. Now, however, it’s pretty clear that the U.S. Trustee cannot oppose a joint petition just because the married couple is of the same sex.