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Entries in Civil Union / Domestic Partnership (2)


Post-DOMA for Employers

Lawyer for EmployerWage and Hour Defense


by Nicole Kamm





With the dust just settling on Wednesday’s ruling on the Defense of Marriage Act, or DOMA, and Proposition 8 federal court opinions, now is the time for employers to consider the potential impact on their businesses.

Among the workplace-related issues raised in the cases are: continuation of benefits under the Consolidated Omnibus Budget Reconciliation Act (COBRA), eligibility for leave under the Family Medical Leave Act (FMLA), taxation of spousal health benefits, eligibility for spousal retirement benefits, and surviving spouse social security benefits.  And there are more.

In view of this, let's take a look at what the court opinions will mean for business.


Part of DOMA Definition of Marriage Unconstitutional


The U.S. Supreme Court ruled in a 5-4 decision in United States v. Windsor, that Section 3 of DOMA is unconstitutional. This is the section that defines marriage as the union of one man and one woman only, excluding same-sex marriages and polygamy.

Chief Justice John Roberts delivered the 5-4 opinion:

By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to Federal Government…Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages.


By applying the DOMA definition of marriage, over 1,000 federal benefits were denied to same-sex married couples. Many same-sex spouses were left without healthcare, pension and retirement benefits, tax benefits (see Kira S. Masteller's blog regarding Edith Schlain Windsor's claim, when her partner Thea Spyer passed) and leaves of absence privileges when a spouse serves in the military, has a child, or needs medical care – to cite just a few examples.


Proposition 8 & DOMA - Employer Checklist


Now that the U.S. Supreme Court has deemed the definition of marriage under DOMA void, you may need to:

  1. Review employee handbooks
  2. Review employee benefit packages
  3. Revisit retirement plans, since many define marriage by DOMA standards
  4. Prepare to garnish wages in the event of an employee's divorce or child support obligations, when s/he has been unable to meet those demands.
  5. Ensure employees know their spouses may qualify for benefits

If your company has staff outside of California, consider the possible implications of having employees who live and/or work in states that do not authorize gay marriage.

To the extent they already provide benefits to same-sex spouses or domestic partners, employers should consider whether further changes are required.  Finally, employers can expect to hear from workers wanting to add a spouse to a benefit plan.  Be ready to promptly handle such requests.

There are still many open questions.  In the meantime, make sure you take steps to comply with the law, including treating same-sex employees and their spouses the same way you would treat any other employee or spouse – without discrimination in pay, working conditions, or benefits.

Nicole Kamm is an Employment Defense Attorney at our Firm. If you have questions regarding compliance with state and federal employment law, contact her via email: 


Tax & Estate Planning - Small Win for Same Sex Couples?

Trusts & Estate Planning

by Kira S. Masteller


The Defense of Marriage Act, or DOMA, was enacted in 1996 to "define and protect the institution of marriage." It defined marriage as a legal union between one man and one woman – and defined spouse as a person of the opposite sex who is a husband or wife.

The Act also says that states, territories, possessions or Indian tribes of the U.S. are not required to recognize public acts and judicial proceedings regarding relationships between persons of the same sex that occur within other states, territories or tribes.

These definitions and directives have been under fire for a long time, but recently, a district court in New York ruled parts of DOMA unconstitutional.

In Edith Schlain Windsor v. The United States of America, the question revolves around tax obligations for estates passing to same-sex spouses.


Trust and Estate Planning for Same Sex Couples Under DOMA


For context: Windsor and Thea Spyer met in 1963, entered into a committed relationship and lived together. In 1993, Windsor and Spyer registered as domestic partners in New York. They married in Canada in 2007.

Spyer's estate passed to Windsor in 2009 when she died. But Windsor paid over $350k in taxes on the estate because under DOMA, she did not qualify for an unlimited marital deduction.

Windsor sought a refund, claiming DOMA violates the Equal Protection Clause of the Constitution of the United States' Fifth Amendment. Windsor had to prove that:

  1. She suffered an "injury in fact," in this case, her interests were legally unprotected;
  2. There was a causal connection between the injury and the Defendant's actions, not between the injury and a third party; and,
  3. It is "likely" the injury will be remedied with a favorable decision

The defense, the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives, alleged among other things, that Windsor did not meet the second condition. The group claimed that the State of New York did not recognize Windsor's marriage to Spyer in the year that Spyer died. Defense cited the 2006 decision Hernandez v. Robles, which said "New York Constitution does not compel recognition of marriages between members of the same sex."

The District Court disagreed. According to Justice Barbara S. Jones:

In 2009, all three statewide elected executive officials – the Governor, the Attorney General, and the Comptroller – had endorsed the recognition of Windsor's marriage [Justice Jones cited two other court decisions, Godfrey v. Spano, and Dickerson v. Thompson]. In addition, every New York State appellate court to have addressed the issues in the years following Hernandez has upheld the recognition of same-sex marriages from other jurisdictions.

There were other claims and defenses made. But the Court granted summary judgment for Windsor, and declared Section 3 of DOMA unconstitutional in this case. Though a victory for Windsor and same-sex couples for the moment, we can only wait and see what happens next.

Kira S. Masteller is a Trust & Estate Planning and Probate Attorney. If you have questions about your own estate planning, contact her at .


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