By Linda T. Cammuso

The Defense of Marriage Act (DOMA) had two key provisions, one of which was declared unconstitutional on June 26, 2013. The provisions included:

  • Section 2,which allows states to decline to recognize  marriages of same-sex couples granted in another state, and
  • Section 3 of the law which excepted same-sex couples, regardless of their marital status, from Federal statutes, regulations and rulings applicable to all other married people – thereby excluding them from over 1,100 Federal benefits and protections.

Because of Section 3, same-sex married couples had to pay Federal tax on their inheritances from each other that exceeded the tax-exempt amount. That is what happened to Edith Windsor who brought one of the cases to the Supreme Court. Her partner of 44 years, Thea Spyer, died when the federal exemption was $3.5 million and the top tax rate was 45%. Since the couple lived in New York but were married in Canada, the Federal government assessed an estate tax of $363,053. That has since been refunded. The decision involved an important tax break for married same-sex couples, among other significant benefits.

However, Section 2 of DOMA was not part of the Windsor case and remains the law of the land. There is a move to fully overturn DOMA and finally bring an end to the distinction under the Federal law of same-sex and opposite-sex marriage. The Respect for Marriage Act was introduced on June 26, 2013, just hours after the victory in the Windsor case.

If passed The Respect for Marriage Act (RFMA), will repeal DOMA in its entirety and provide every married couple with Federal benefits and protections provided their  marriage is valid where it was performed, even if that couple moves or travels to another state. The bill does not require states that have not yet enacted legal protections for same-sex couples to recognize a marriage.  Nor does it obligate any person, state, locality or religious organization to celebrate or license a marriage between two persons of the same sex.  But, this legislation will require the federal government to equally apply its policy of looking to the states in determining what legal relationships are eligible for federal benefits.

Estate Preservation Law Offices will continue to track the bill and keep our readers advised. In the meantime please click here to read another important blog: IRS Clarifies DOMA Impact on Federal Tax Matters



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