When Arden Besunder P.C. was founded in 2009, it dedicated its estate planning practice to representing the interests of same-sex, LGBTQ couples who were not afforded the opportunity to legally marry. In the years since the firm’s inception, we have fortunately witnessed an avalanche of change across the nation. In 2009, only five states — Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire — and the District of Columbia had legalized same-sex marriage. On June 24, 2011, New York State enacted legislation legalizing same-sex marriage and granting same-sex couples the right to marry, becoming the sixth and most populous state to legalize same-sex marriage, joining Massachusetts, Connecticut, Vermont, Iowa and New Hampshire, as well as Washington D.C. Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden also allow same–sex marriages to be performed in their jurisdiction.
It was not until June 26, 2013, however, when the U.S. Supreme Court decision repealed a key part of the Defense of Marriage Act (DOMA), which was the lynchpin in denying LGBTQ full marriage rights. The case, United States v. Windsor, was precipitated by Edith Windsor (a New Yorker!) who challenged the imposition of the federal estate tax when her spouse Thea Spyer died in 2009, leaving her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses. She was prevented from doing so by Section 3 of DOMA, which provided that the term “spouse” in federal law only applied to marriages between a man and a woman. The IRS found that the exemption did not apply to same-sex marriages, denied Windsor’s claim, and compelled her to pay $363,053 in estate taxes. The United States Supreme Court held in a 5-4 decision that Section 3 of DOMA was unconstitutional “as a deprivation of the liberty of the person protected by the Fifth Amendment.”
On the same day of the Windsor decision, SCOTUS issued a separate 5-4 decision in Hollingsworth v. Perry relating to California’s constitutional amendment initiative barring same-sex marriage. The decision ruled that the proponents of the initiative lacked Article III standing to appeal in federal court. The decision effectively allowed same-sex marriage in California to resume.
Often overlooked in the media coverage of the Windsor case is the fact that the landmark decision did not invalidate DOMA in its entirety. Only Section 3 of DOMA was invalidated. The rest of DOMA remains – specifically, allowing an exception to the “full faith and credit” clause of the Constitution and allowing the states to not recognize marriages validly entered into in another jurisdiction. DOMA still continues to allow states to enact their own legislation banning same-sex marriage. As of September 2014, 31 states still have laws or constitutional amendments that deny the freedom to marry to same-sex couples.
The law in this area is rapidly changing. For a full list of the status of laws in all the states click here. (www.freedomtomarry.org/pages/where-state-laws-stand)
Despite the legalization of marriage, special planning considerations still face same-sex and transgender couples. Gay and lesbian individuals and same-sex couples continue face a different set of challenges in meeting their estate planning needs. (For those either contemplating marriage or already married, the Firm also prepares pre-nuptial and post-nuptial agreements as vehicles to protect the assets of a member of the lesbian or gay married couple; such may be particularly critical if one member had children prior to the current marriage.)
Today, 37 states have legal same-sex marriage, with 13 states banning same-sex marriage. The legal landscape is rapidly changing, however, and for an up-to-date list visit http://www.hrc.org/campaigns/marriage-center. In the meantime, however, same-sex couples, whether married or unmarried, need legal counsel more than ever to ensure that their legal status is protected, particularly if the couple intends to move.
Perhaps more than anyone else, same–sex couples and other unmarried couples (and their families) need to consult with an estate planning attorney to ensure that their planning objectives are met through comprehensive documentation.