The Future of Estate Planning For Same Sex Couples

Authored by: Michael C. Levy, Esq.

In early June, we discussed the movement towards federal tax equality for same sex couples created by an IRS ruling on California domestic partnerships.  At the time, we cautioned that while the ruling opened the door to tax equality, several obstacles still needed to be overcome for true equality to exist.  Since then, two rulings by District Court judges have been handed down that may soon clear the way for same sex couples to share the same tax rights (and obligations) as other married couples.

A pair of cases before the United States District Court for the District Court of Massachusetts dealing with the Defense of Marriage Act were jointly decided by District Court Joseph Tauro.  Judge Tauro held that Section 3 of Act, which defined marriage and spouse for federal law as being only related to heterosexual couples, to be unconstitutional because it violated the 5th and 10th amendments of the Constitution as it relates to due process and states rights respectively.

More notably, on August 4th, the US District Court for the North District of California struck down Proposition 8, the 2008 ballot initiative which prohibited the state of California from recognizing same sex marriages.  The decision held that Proposition 8 violated both the due process clause and the equal protection clause of the 14th amendment.  Most notably, the decision held that marriage is a fundamental right and that domestic partnerships were not a sufficient substitute for the right to marry freely.

It is certain that both these decisions will be appealed and that until the United States Supreme Court reviews one or both cases, the possibility that same sex couples will have full federal tax equality remains uncertain.  Should the high court agree with these two decisions, same sex couples will have the ability to plan their estates in the same manner that is currently afforded to heterosexual couples alone.

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