[Suppose we had lived together all this time, and had pretty much the same life... but without a marriage license. In that case, if one of us died or we got divorced, the law would treat us, more or less, as if we *had* been married. Why? Common-law marriage recognizes that when people share a bedroom together, they also tend to share bank accounts. And sometimes they have babies. Or pets.]

I hope you are or spoke to an attorney about this....because common law is not federally recognized where estate tax is concerned. Common law may be recognized by specific states, but is not recognized by all. Massachusetts, for example, has no common law recognition:

http://www.madivorceonline.com/mapages/Alimony/commonlawmarriage.asp

So whereas Massachusetts has an estate tax, common law marriage would not shield such a couple. (The estate tax exclusion here is only $1 million, BTW). So check with your state whether there is a local estate tax and whether common law marriage is even valid. The bigger point, though, is that it is NOT federally recognized for tax sheltering.

And since so many people here seem to be guessing as to what the IRS estate tax exclusion amount is, here's the link to that info (on the bottom of the page):

http://www.savewealth.com/planning/estate/taxes/

Note that the exclusion after next year is only $1 million.

Even if Ms. Leibovitz and Ms. Sontag were married Annie would have had to pay tax on most of her inheritance because it probably exceeded the exemption amount at the time of her death ($1.5 mil I think). The irony of it is that the nemesis of gay marriage, the Republicans and former prez Bush, enacted "tax cuts for the rich" that in later years would have alleviated (or eliminated altogether in 2010) the inheritance tax she would have to pay.

Regardless of the nature of the relationship between Leibovitz and Sontag, this does not just affect gay couples.

As a foreign spouse married to an American I have to pay 50% tax on my husband's entire estate, were anything to happen to him, and no, there is no $2 million tax-free inheritance. My only option is to become a US citizen so that if anything were to happen to him, I would be able to continue to live in our house.

The tax laws for inheritance are incredibly unfair and ridiculous.

I had no idea. Thanks for writing about this.

I'm not sure about the estate tax exclusion, but one of the ironic facts about the gay marriage debate is that many of the legal benefits of matrimony *are* available to couples who *aren't* married... so long as they are straight.

I'm been married for 17 years, and my wife and I have a house, two kids, a minivan, a dog, a cat and a rabbit.

Suppose we had lived together all this time, and had pretty much the same life... but without a marriage license. In that case, if one of us died or we got divorced, the law would treat us, more or less, as if we *had* been married. Why? Common-law marriage recognizes that when people share a bedroom together, they also tend to share bank accounts. And sometimes they have babies. Or pets.

When this type of private partnership dissolves, there is a public interest in the orderly disposition of the joint assets. Which is a lot easier within some kind of contractual framework, i.e., marriage.

It's more than a bit strange that millions of couples who choose *not* to get married are shoehorned into a legal arrangement of sorts, while millions of gays and lesbians who *want* to get married are excluded.

The pretending to intimacy with Ms. Sontag and Ms. Leibovitz in this thread is strange. As far as the rancor, any essay or article that mentions gay people brings out the conservative crabs, who love to scuttle into gay people's crotches.

The IRS is the cancer of history. But of course she didn't, because liberals are not supposed to criticize that sacred organization.

This critique of the tax code cuts both ways. The generous tax break for a surviving spouse is obviously a holdover from days when most women had sacrificed themselves to husbands and children. It was a policy meant to protect the welfare of the surviving spouse and children - a blunt instrument of social policy that was meant to be fair to the many regardless of its unfairness to some individuals. These days, when more married women have had opportunities to develop financial independence, or haven't had children at all, we could say the rationale for the tax break no longer exists. And it is a contradiction of feminist goals to say that a successful woman like Annie Leibovitz should rely on her partner's estate to get out of a financial jam. Rather than extending the benefit to all non-married couples or expanding the definition of marriage, a government that is looking desperately for ways to raise revenue could just as easily scrap this tax advantage for married people.

It's time to crush the family dynasties. The government has to announce loud and clear--you can't take it with you. Disperse it before death, or the government will disperse it for you. I can't figure out how inheriting a bunch of stuff can put you in financial peril, unless you're desperate to hold onto crap that you should just sell to pay the taxes with.

as a response to all those well-meaning but clueless people who wonder what could possibly be wrong with the "states' rights" solution of separate-and-unequal "civil unions."

I love the appearance on Salon.com of a bunch of people who a) know everything, intimately, about Annie Leibovitz, including, definitively, her living arrangements, parenting decisions, and who was or was not her life partner. b) Even "The New York Times" couldn't figure out whether or not Susan and Annie were a lifelong couple--and yet Annie has just inherited most of Susan's property? And aren't we reading Salon.com partly because the NYT, like the rest of the MSM, is tepid and lame? c) I didn't even think, based on the last twenty years of having been part of a world that includes, among others, people who have worked closely with both of them, that the relationship, as a partnership, was even ever a question. d) Were Woody Allen and Mia not married because she adopted kids independently of his desires or attention (well...except for...)? e) Are all couples who spend lots of time apart not "really" married? I am struck by the weirdly nasty and strangely bigoted logic here, masquerading as "common sense."

Some of you belong on FreeRepublic.com, not Salon.com. Or, okay, slightly more genteel: The Weekly Standard? They like to make snarky comments about gay people too.

And as far as Nancy's research goes: there is NO way, legally or otherwise, that you can adequately compensate for all of the inequalities that the lack of FEDERAL gay marriage raises. There just isn't--no amount of creative trusts, estate planning, etc., makes up for what are over a thousand FEDERAL rights. There is a gay tax, and it's massive. Social Security. Government Pensions. The right to do more things than you've ever even imagined not being able to do, until you can't. Visiting your partner in the hospital, as the AMEX commercial goes: priceless!!!!!

I actually researched adding my partner, a few years ago, to my insurance. Verbatim quote from my HR: we would report the full value of this to the IRS as an amount that would be added directly to your tax burden. A few hundred dollars a month was approximately what I would have been paying as well. The spouse's salary, by the way, is irrelevant--it's entirely based on the notion that you are paying for something that straight people just "deserve." My HR person at the time helpfully added "I would love to be able to get health insurance for my dog or my grandmother."

I don't care if if it's 10 dollars a month. I don't want to pay a gay tax. I don't want to be denied the same social security, pension, and other benefits that everybody else is entitled to.

There are no ifs, ands, or buts. There are no fancy legal solutions. And to all the Snarky Salon Legal Whizzes who supposedly "live in Manhattan"--are you aware of how much such lawyers, in Manhattan, cost?

I am--and it's out of reach for all but the wealthiest gay and lesbian people.

The tone of these Salon responses to Nancy's article is particularly disappointing, because Nancy, in her typical fashion, is pointing out an ugly aspect of privilege in a very blunt way. Clearly, people are made uncomfortable, and so they lash out. Sadly, it sounds like the kind of rhetoric I would have expected in 1930's Germany--bitter bile against a minority that is allegedly all too privileged, blaming "them" for "their" failings.

Ughghhggh.