Last week, Judge Joseph Tauro of the Massachusetts federal district court ruled that the Defense of Marriage Act (DOMA) is unconstitutional on Tenth Amendment and Equal Protection grounds.

DOMA is the 1996 federal law that defines marriage as the legal union exclusively between one man and one woman. It also prohibits the federal government and its agencies from extending the benefits of marriage, which are available to married heterosexual couples, to married same-sex couples. Examples of the benefits for which married same-sex couples are ineligible under DOMA include social security survivor benefits and IRS joint tax filing status.

Judge Tauro struck down the portion of DOMA that deals with the denial of benefits to same-sex couples, agreeing with the Plaintiffs that:

• “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment.”

• The Act violates the Equal Protection Clause of the Fourteenth Amendment. The judge found no rational basis for the federal government’s denial of federal benefits to married homosexual couples while granting the same benefits to similarly situated married heterosexual couples.

Possible Implications

As it stands, the ruling is limited to Massachusetts. However, the Department of Justice is likely to appeal the ruling to the First Circuit Court of Appeals. So far, six states (CA (as to marriages from June 16, 2008 – November 5, 2008), CT, IA, MA, NH, and VT) and the District of Columbia recognize same-sex marriage. As the case works its way up the ladder of appeals, the implications may broaden.

This case is worth watching because of the potential implications it has for our same-sex clients with regard to a broad range of federal programs and issues.

• Social Security.  Currently, surviving same-sex spouses are not eligible for social security survivor benefits.

• Federal Income Tax.  Currently, same-sex married couples are not eligible to use the married filing jointly status on their federal income tax returns.

• Federal Gift Tax.  Currently, same-sex married couples are not eligible for the unlimited gift tax marital deduction allowed to other married couples.

• Federal Estate Tax.  Currently, same-sex married couples are not eligible for the unlimited estate tax marital deduction allowed to other married couples.

But, there could be some disadvantages for married same-sex couples, as well. The federal ban on recognition of same-sex marriage embodied in DOMA has provided some planning advantages for married same-sex couples which would disappear. For example, Grantor Retained Income Trusts (GRITs) may not be done if the donor and beneficiaries are “related.” Same-sex married couples are not “related” for federal estate and gift tax purposes and currently can do GRITs for each other. If the marriages of same-sex couples are recognized under federal law, GRITs would no longer be available to these couples.

Stay tuned as we see whether the Department of Justice appeals this case.

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Road, Suite 240
San Diego, CA 92124
(800) 846-1555
www.aaepa.com