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Entries in gay marriage (7)

Wednesday
Jun202012

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

Trusts & Estate Planning

by Kira S. Masteller
818.907.3244

 

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 kmasteller@lewitthackman.com .

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Thursday
Feb092012

Gay Marriage | Proposition 8 Serves No Purpose, Says 9th Circuit

Encino Tarzana Divorce LawyerFamily Law Attorney

by Vanessa Soto Nellis
818.907.3274

San Fernando Valley Custody Lawyer Los Angeles

 

It's an election year. As though the economy isn't enough for candidates to fight about, California's 9th Circuit Court added another topic to the political frenzy: Proposition 8, the 2008 voter-approved ban on same-sex marriage

On Tuesday the federal appeals court decided 2-1 that California's Prop 8 is unconstitutional. Though the opponents of Prop 8 enjoyed a small victory this week, the battle is far from over. Because, first and foremost, it's an election year. 

But aside from that fact, there are other questions involved around whether or not Prop 8 should be deemed valid. Justice Stephen Reinhardt wrote, "Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only…" 

The constitutional question on the docket? Whether or not Prop 8 violates the 14th Amendment of the U.S. Constitution. According to Judge Reinhardt's written statement, it does: 

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California. . . 

Keep in mind that Prop 8 was approved by just over 52 percent of California voters in 2008. 

The gay marriage issue in California is unique because it was a right that previously existed, and California has domestic partner laws. Because of this, some doubt that the U.S. Supreme Court will review the case. 

Regardless, we can expect those running for President to weigh in until November, which should make for some interesting commentary. 

 

Vanessa Soto Nellis is a Los Angeles Divorce Attorney and Shareholder in our Family Law Practice Group. You can reach her by calling 818.990.2120.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
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