Same-Sex Marriage and Bankruptcy Law

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There has been a staggering increase in bankruptcies in the past year. Federal bankruptcy law is often interpreted with reference to state law, including law regarding property interests that are acquired through marriage.  But what if a same-sex couple got married, say, in Connecticut, then moves to a state that does not recognize the marriage or civil union?  

 My colleague Jackie Gardina addresses this question in her article,”The Perfect Storm: Bankruptcy, Choice of Law, and Same-Sex Marriage.”   She identifies the choice of law question as the central issue:

Whether a bankruptcy court recognizes an individual debtor’s interest in property that arises as an incident of a state-sanctioned same-sex marriage or civil union essentially boils down to a choice of law question.  Choice of law itself is a complex issue, but in the context of same-sex marriage or civil union it is further complicated by the number of states promulgating “marriage protection” statutes – the so-called “mini-DOMAs” or espousing a public policy that prevents state courts from recognizing same-sex marriage or civil unions performed in other states.

Professor Gardina proposes

that the forum state’s choice of law rule is inapplicable in the bankruptcy context when interpretation and application of the Bankruptcy Code requires reference to state law. In these instances, bankruptcy courts should be free to develop a federal choice of law rule that promotes the federal policies underlying the Bankruptcy Code.


 The full article is available here.

– Stephanie Farrior

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