Estate Planning After DOMA

By Jennifer A. Birchfield

On June 26, 2013, the United States Supreme Court issued decisions in Windsor v. United States and Hollingsworth v. Perry, two landmark cases regarding government recognition of same-sex marriage.

In Windsor, the Court struck down Section 3 of the Defense of Marriage Act ("DOMA") as an unconstitutional deprivation of personal liberty. Section 3 of DOMA provided that, for purposes of federal law, the term "marriage" refers to opposite-sex marriage only. The majority decision noted that (i) the ability to regulate state recognition of civil marriage is central to each state’s domestic relations law and (ii) Section 3 of DOMA impermissibly created two classes of married couples within states that recognize same-sex marriage ("recognition states") by depriving same-sex spouses of the federal benefits bestowed on opposite-sex spouses. As a result of this decision, the same federal benefits will be granted to both opposite-sex and same-sex spouses in all recognition states. It should be noted, however, that the case did not address the constitutionality of Section 2 of DOMA. Section 2 provides that states may choose to deny legal recognition to same-sex spouses married outside of such state. Within states that choose to exercise their Section 2 right not to recognize same-sex marriage, it is unclear what federal benefits same-sex spouses may receive (more on this below).

The Hollingsworth case hinged on a procedural issue with the Court ultimately deciding that the appellants (proponents of California’s Proposition 8) did not have standing to bring suit on behalf of the State of California. The Court’s decision left in place a lower court’s ruling that Proposition 8’s constitutional bar on same-sex marriage violated the federal due process and equal protection clauses. As the Court did not address the constitutionality of same-sex marriage bans and the lower court’s decision applies to intrastate matters only, this case changes little outside the State of California but may constitute a harbinger of things to come.

This Client Alert explains the estate planning opportunities available to same-sex couples in D.C., Maryland, and Virginia in the wake of Windsor and Hollingsworth. Please call us to discuss whether these suggestions would be useful in your situation.

Read Full Article