Down with DOMA


Almost nine years after same sex marriage rights were fully sanctioned by the Supreme Court of Canada, in the decision of United States v. Windsor, with a 5-4 majority decision, the United States Supreme Court has determined that the Defense of Marriage Act (“DOMA”) is unconstitutional as a deprivation of the equal liberty of persons protected by the Fifth Amendment. This is a huge victory for the protection of the federal rights of same sex couples who are living in a State which recognizes same sex marriage.

Edith Windsor and Thea Spyer wed in Ontario in 2007. They resided in New York state which recognized this marriage, affording them the same State rights of a heterosexual married couple. What they did not have, thanks to DOMA, were the federal rights afforded to a heterosexual married couple. When Ms. Spyer died in 2009, she left her entire estate to Ms. Windsor. When Ms. Windsor tried to claim the federal estate tax exemption for surviving spouses, she was denied by virtue of s. 3 of DOMA which defined “marriage” and “spouse” as excluding same-sex partners. As a result, Ms. Windsor was forced to pay over $363,000 in estate taxes which she would not otherwise have to pay. In determining that DOMA was unconstitutional, the Court concluded that DOMA allowed the federal law to take away rights to individuals which the State chose to recognize and protect and, by doing so, DOMA was found to violate the basic due process and equal protection principles applicable to the Federal Government.

While this decision continues to leave the legality of same-sex marriage up to each individual State, our married friends to the South are now assured that their State and Federal rights will be applied uniformly, allowing legally married same-sex couples the ability to estate plan the same as their heterosexual counterparts. Congratulations to all for a legal battle well done!