In the wake of the passage of marriage equality laws in our state, many assumed that the issue was settled for New York’s same-sex couples–they would be treated the same as all other couples in our state. Not so. Our New York estate planning attorneys are acutely aware of the continued inequalities faced by these citizens. The problem is rooted in federal treatment of these couples with clear estate planning ramifications.
A 1996 law–the so-called, “Defense of Marriage Act” (DOMA)–forces the federal government to treat same-sex married couples differently than others. Breaking with long-standing tradition of recognizing all marriages legal in each states, the federal government explicitly defined marriage as not including same-sex couples. As a result, same-sex couples married legally in individual states are still considered strangers by the U.S. government. Obviously, this split recognition has negative consequences for the involved couples. All estate plans for these couples must continue to take this into account.
Yet, many observers believe that the federal law which creates the division is on its last leg. The most high-profile challenge to DOMA was recently decided at the federal level. In June, the New York district court ruled that DOMA was unconstitutional. Even before an appeal to the intermediate appellate court (“Circuit Court”), the plaintiffs in the case, Windsor v. United States, asked the U.S. Supreme Court to hear the case.
While bypassing a federal circuit court is highly unusual, many believe the U.S. Supreme Court will hear the challenge this Fall and issue a ruling the following Spring. That is because two other challenges to DOMA are also pending in federal district courts. No matter what the outcome, the case will likely need to be settled by the high court anyway.
A final resolution on this issue cannot come soon enough. Our New York estate planning attorneys are aware that even the plaintiff–a woman whose female partner passed away in 2007–will not be able to receive relief even following her victory at the district court level. The district court decision was automatically stayed and so she will not see any relief until there is an ultimate resolution at a higher court.
Many local couples will undoubtedly be following the developments closely. As the executive director of the New York Civil Liberties Union noted, “The impact of DOMA is felt most dramatically today here in New York. At least 10,000 same sex couples have been married in New York since our marriage law went into effect. But DOMA subjects gay and lesbian married New Yorkers to a form of second-class citizenship.”
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