U.S. Supreme Court Finds Federal DOMA Unconstitutional

By Laurie A. Hunter, Esq.

On June 26, 2013, the U.S. Supreme Court, in a 5-4 decision, determined that the federal DOMA (Defense of Marriage Act) that prohibited recognition of a valid same-sex marriage under state law was unconstitutional. U.S. v. Windsor. In this case, the surviving spouse of a valid same-sex marriage filed a U.S. Estate Tax Return, claiming the marital deduction for assets passing to her. The marital deduction was denied by the IRS, and tax assessed. This decision makes clear that for a valid marriage under state law, the federal government cannot deny benefits to a spouse.

What this decision does not do: It did not address the validity of a state’s "DOMA" laws, which Colorado has passed, in which a state refuses to recognize the validity of a same-sex marriage that is valid under another state’s law. This may be the next case that reaches a court. It also does not address civil unions, that are specifically not marriage. In Colorado’s new Civil Union statute, a valid same-sex marriage in another state automatically converts to a civil union in Colorado. Therefore, it may be that couples married in a state where same-sex marriage is valid, would still not be entitled to spousal benefits in Colorado, but they could be entitled to federal spousal benefits. The effect is unclear at this point.

The U.S. Supreme Court and Frozen Sperm

On May 21, 2012, the Supreme Court ruled in Comm’r of Social Security v. Capato, No. 11-159 that Social Security benefits are payable only to "children" as defined in applicable state law, and that under Florida law in that case, children conceived after the decedent’s death using his frozen sperm were not his "children." Effective July 2010, Colorado adopted changes to the Uniform Probate Code, in which children conceived within three years after the decedent’s death using frozen sperm in certain circumstances will be "children" for purposes of the Colorado intestate statutes and class gifts. C.R.S. 15-11-121(8). Therefore, after July 2010, a Colorado decedent will have a different result than the Capato case. For more information about this topic, go to our June 2010 Wade Ash Newsletter or go to the Wall Street Journal article.