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The Unanswered Questions Following the DOMA Decision

It will take some time for all of the implications of the Defense of Marriage Act (DOMA) Supreme Court decision to be fully understood. Over the past week we discussed a few of the most critical effects on estate planning for New York married same sex couples.

All those wondering about the grey areas that remain when it comes to the ruling should browse a recent Forbes article on that situation. It offers a helpful overview of the remaining question marks that will likely be shaped by political, judicial, and administrative actions over the next few months and years.

Most notably, there remain somewhat murky questions about what happens when couples move between states. This is not some isolated worry, as it is quite common for a couple get married somewhere and move away for any number of reasons: job, family, adventure, etc. Married New York same sex couples must be very careful about their situation to ensure they do not lose their rights upon leaving.

As the Forbes article points out, technically only one part of DOMA was struck down by the Court’s decision in Windsor v. US.. Left in place was the section that allows individual states to not recognize same sex marriages performed elsewhere. The Court did not officially deem that portion in compliance with the Constitution, it just didn’t mention it. More litigation will likely be pursued to clarify this question.

Not only do state not have to recognize same sex marriages from elsewhere, but the federal government may not have to keep recognizing such marriage if a couple moves to a different state. In other words, per the DOMA ruling, the federal government must treat all New York marriages equally. Yet, if a married same sex couple moves from New York to New Jersey (where such marriages are not recognized), the federal government may be free to stop recognizing the marriage. It is unclear if they will do so, but it is still too early to understand how it will all play out.

Remember: It is critical for all families to update their estate plan on a regular basis. That need is acute for married sex couples who move between states. It is very possible that the simple act of moving across state lines can totally alter one’s rights and obligations with severe effects on a plan. Long-term plans are tailored to one’s unique circumstances and applicable state laws. Any change in those circumstances or those laws may require modification of the plan.

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