Late September is well-known as the official start of autumn. In the legal world, it also marks the beginning of the new United States Supreme Court term. Many legal observers keep close watch of court actions at this time to figure out what major issues might be decided in the upcoming year. That is because the Court is currently deciding exactly what cases to take for the upcoming term (which begins in October). Thousands of appeals are filed, but only a small fraction will actually be accepted. In many ways it is much harder to get a legal case heard than it is to actually win the case in front of the Court.
Some cases that the high court might hear this year could have implications on elder law or estate planning issues. The most high-profile of these related to same-sex marriage. There are two separate cases that the Court might take, both which would have different effects on the rights of same-sex couples--and their planning.
1) Constitutionality of DOMA: The Defense of Marriage Act (DOMA) has long been a bane for same-sex couples seeking equality in their planning. The law defines marriage as only between a man and a woman for federal purposes. That means that even couples legally married in their state, like New York, receive no federal recognition of their union. Appeals Courts have consistently found DOMA unconstitutional. The law continues to force same-sex couples to work around their lack of recognition of their union in estate planning and long-term care strategizing.
2) Federal Constitutional Right to Marriage (Prop 8): A more far-reaching case is that rooted in California's Proposition 8 amendment from 2008. In that case lower courts have found that the ban on same-sex marriage violates the federal constitution's equal protection provisions. In that way, this challenge has the opportunity to open up same-sex marriage laws across the country. It a far more sweeping case, and ultimately more risky for those who believe that same-sex couples should have the right to marry. Should the court take the case and rule against the proponents, then the precedent may set back the legal route to same-sex marriage for a considerable length of time.
Many suspected that the Court might announce on Tuesday of this week that they were taking one (or both) of these cases. That did not happen, but the Court may still decide to take one or both cases as it released more of its schedule in the coming days.
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