We are a low income couple and don't know what the costs would be in obtaining legal advise on this matter. We are HIV positive seniors living in NYC. My spouse (we were married in CT), and I have been living in our co-op for 32 years (co-op is in my spouses name). After we were married (in Dec.), we wanted to add my name to the property lease as co-owner currently being held by Citibank because we have a mortgage. When we filed the paper work checking the box spouse and providing a copy of marriage license (spouses automatically assume co-ownership of co-op's held by CitiMortgage),Citibank denied our request saying they did not recognize same sex marriages. So:

1. Can we do anything about this with Citibank?

2. If not, I am in my spouses will to inherit the property should I survive him. Will NYS waive the estate tax on the property I inherit because I'm a spouse and have lived in it for 33 plus years?

3. Should we file NYS jointly this year for our taxes?

These are all very good questions, and, unfortunately, due to the current state of marriage recognition, I cannot provide you with clear or definitive answers to any of them.

As you are aware, New York State does not allow same-sex marriage between its citizens (the NYS Senate more recently voting against it in December 2009). Currently, only Massachusetts, Connecticut, Vermont, New Hampshire, and Iowa offer same-sex marriages. California, which previously allowed same-sex marriages (but then amended their Constitution to forbid them), treats those married during the legality window as valid.

Some NYS offices have stated an intention to recognize out-of-state marriages, others have not. NYS Department of Taxation & Finance has not issued a statement on this since 2007 and 2008; such statement said that NYS will follow Federal law - which, because of the Defense of Marriage Act (DOMA), does not recognize same-sex marriages. NYS Courts, however, have issued some decisions recognizing out-of-state marriages between same-sex couples. Litigation has yielded favorable results, but these results may be expensive to come by.

With regard to your specific questions:

1. Citibank is a private institution, and, thus, not subject to the same rules as government entities. You might be able to sue them (expensive) or file a complaint with a City/State government agency. However, given the flux in the law concerning recognition of same-sex marriages, I cannot guarantee you would get very far on either course of action.

2. Married couples are allowed to leave each other tax-free inheritances. Any assets passing to the surviving spouse will pass free of the NYS estate tax. The NYS Department of Taxation & Finance has not issued any instructions concerning same-sex couples, nor have they amended their previous statements deferring to Federal law. First, you should determine whether your spouse's Estate will be subject to the NYS estate tax; only decedents owning assets valued in excess of $1 million will be subject to the tax. If the tax applies, you should seek legal counsel upon your spouse's passing to determine the current state of the law.

3. Again, we are in limbo as to whether the Department of Taxation & Finance will allow this. I would suggest first speaking to your accountant (or other tax preparer) to determine what financial benefits, if any, you could derive from filing jointly. Assuming there is some financial benefit, you could always file the return and see what happens. The State could reject it, and your choices would be to either (1) pursue an administrative appeal within the agency or (2) file a lawsuit against the Department of Taxation and Finance.

I hope you find this information helpful.

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