First, the Court’s emphasis on federalism and communitarian values strongly suggests that marital status for these purposes will be determined by the state of residence. Section 2 of the Defense of Marriage Act (28 USC §1738C), which the Court noted was not challenged in this case, allows states to refuse to recognize same-sex marriages performed under the laws of other states.
Same-sex couples lawfully married anywhere (Edie Windsor was married in Canada) who currently reside in the District of Columbia or one of the 13 states that currently recognize same-sex marriage, including California, will be entitled to the federal law benefits of marriage, including the estate tax marital deduction.
Residents of other states, including couples who now marry in California and then move to Texas (for example) may be out of luck. Nevertheless, there is little to lose by claiming the marital deduction in these cases.
Second, the Court’s decision does not appear to extend the federal law benefits of marriage to California registered domestic partners and others who have entered into substantially equivalent legal unions in other jurisdictions with the same rights and responsibilities as spouses under state law.
California registered domestic partnerships may soon be converted into marriages for same-sex partners after a relatively short opt-out period as occurred in Washington state, where same-sex marriages not dissolved by June 30, 2014, are converted into marriages under legislation enacted in 2012.
Same-sex partners with taxable estates must stay alive until then or get married to obtain a marital deduction.
For continuing coverage of this issue and a wide range of estate planning concerns, turn to CEB’s Estate Planning & California Probate Reporter. For a detailed discussion of the employee benefits issues in California in light of the Windsor decision, check out CEB’s podcast with attorney Teresa Renaker.
Related CEB blog posts:
- Whither Windsor: What to Do About the Estate Tax Marital Deduction While the Court Considers DOMA
- Second Bite at the Apple: How Unregistered Domestic Partners (and Other Cotenants) Can Still Avoid Property Tax Reassessment
- If We Die, Where Will the Kids Go?
- 10-Steps for Developing and Implementing an Estate Plan, Part I
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