Can Gay Married Couples File for Bankruptcy in New York?
Short answer: Yes. Legally married same-sex couples have the same right to file for bankruptcy in New York—and in all U.S. bankruptcy courts—as opposite-sex couples. This is true whether they file under Chapter 7, Chapter 13, or another chapter of the Bankruptcy Code.
✅ Equal Protection Under Federal and New York Law
New York State recognizes same-sex marriages under NY Domestic Relations Law § 10-a, which states:
“No application for a marriage license shall be denied on the ground that the parties are of the same, or a different, sex.”
At the federal level, 28 U.S.C. § 1738C ensures that no state actor may deny recognition of any marriage based on the sex of the individuals. This means same-sex marriages must be treated the same as any other marriage in all legal contexts—including bankruptcy.
🏛️ Joint Bankruptcy Filings for Married Same-Sex Couples
The Bankruptcy Code specifically allows joint filings for married couples under 11 U.S.C. § 302. There is no distinction based on gender. In fact, same-sex spouses are explicitly included in all marital provisions of the Code.
Joint filing allows a married couple to:
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Discharge eligible debts together
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Save on filing and attorney fees
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Use combined asset exemptions (doubling the exemption limits)
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Avoid duplicate paperwork and trustee oversight
In New York, the Local Bankruptcy Rule 1015-1 (NDNY) also presumes the joint administration of cases filed by spouses, unless there is a motion to sever.
⚖️ Important Case Law Supporting Same-Sex Bankruptcy Rights
1. Windsor v. United States, 699 F.3d 169 (2d Cir. 2012)
This landmark Second Circuit case struck down the Defense of Marriage Act (DOMA) as unconstitutional under the Equal Protection Clause. Windsor was denied the marital deduction for estate tax purposes because her spouse was a woman. The court held that DOMA was not substantially related to any important government interest and violated equal protection.
🔍 Takeaway: Same-sex marriages must be recognized in all areas of federal law, including bankruptcy.
2. In re Somers, 448 B.R. 677 (Bankr. S.D.N.Y. 2011)
In this case, a same-sex married couple filed a joint Chapter 7 petition. The U.S. Trustee tried to dismiss it as an “improper joint petition” under DOMA. The bankruptcy court rejected the dismissal, holding that there was no “cause” under § 707(a) to deny the filing and noting that the DOJ had ceased defending DOMA.
🔍 Takeaway: Even before DOMA was overturned, bankruptcy courts in New York upheld the right of same-sex couples to file jointly.
💡 Should Same-Sex Couples File Jointly or Separately?
While joint filing is usually beneficial, there are strategic reasons why a couple—gay or straight—might file separately:
| Filing Option | Advantages | Considerations |
|---|---|---|
| Joint Filing | – Shared exemptions – Discharge joint debts – Save on costs |
– All assets and liabilities are part of the estate |
| Separate Filings | – Strategic if one spouse has significant debt – Can protect separate property |
– Each spouse pays separate fees – May need consolidation |
Either way, the legal right to file jointly is guaranteed.
📝 Final Thoughts
Thanks to federal and state legal developments, including Windsor and In re Somers, same-sex married couples in New York enjoy full and equal access to the bankruptcy system. This includes the right to file jointly under Chapters 7 and 13, claim full exemptions, and obtain a fresh start just like any other married couple.
If you’re in a same-sex marriage and considering bankruptcy, it’s important to consult a qualified New York bankruptcy attorney to evaluate whether a joint or separate filing is best for your situation.
Need help? At Law Office of William Waldner, we’ve guided hundreds of New York couples—regardless of sexual orientation—through the bankruptcy process with compassion, discretion, and proven results.