How Will the Invalidation of the Defense of Marriage Act Impact Bankruptcy Filings?

BEVERLY A. BERNEMAN

Partner

ASHLEY L. ORLER

Associate

DEFENSE OF MARRIAGE ACT (DOMA)
How Will the Invalidation of the Defense of Marriage Act Impact Bankruptcy Filings?

The Supreme Court’s decision to overturn Section 3 of the federal Defense of Marriage Act, or DOMA, may impact same-sex couples’ ability to file a joint petition for bankruptcy.

For married same-sex couples living in a state that recognizes same-sex marriage, the invalidation of DOMA will make it possible for them to file jointly for bankruptcy protection.

While federal law governs bankruptcy proceedings, state law may dictate which assets are included in the bankruptcy estate. In the aftermath of the Supreme Court’s decision, for married same-sex couples living in a state that does not recognize same-sex marriage, there remains some uncertainty regarding the applicability of state law on joint bankruptcy filings by married, same-sex couples. But, as Illinois law currently recognizes same-sex civil unions, an argument could be made in the bankruptcy court that Illinois’ legal recognition of same-sex relationships is analogous to states that recognize same-sex marriages.

If you have any questions about bankruptcy, including filing jointly as a same-sex couple, please contact one of Golan & Christie’s experienced bankruptcy attorneys.

Beverly A. Berneman, (312)696-1221, baberneman@golanchristie.com or Ashley L. Orler, (312)696-2032, alorler@golanchristie.com