California Same-Sex Marriage, A Sort-Of Victory

The United States recently took another step toward remembering that it has a Constitution that it is supposed to follow by allowing same sex couples to marry in California. I am a Trust and Estate attorney, not a Constitutional scholar, but I cannot see how banning same-sex marriages is not a violation of the equal protection clause of the 14th amendment to the Constitution of the United States. If you know, maybe you can help me out.

As you may have heard, the California Supreme Court ruled unconstitutional a law limiting marriage in California to a union between a man and a woman. You can read the decision here. (WARNING: it is 172 pages long!)

While there were celebrations-a-plenty over the recent weddings performed (as well as some protests by people who appear in the media to be more than a little nutty) in City Halls across the state, the real impact of all this is pretty much nil. The fact is that California domestic partnership law already gives same sex couples all of the legal rights and privileges of married couples. The major problem is that many of the most important rights and privileges of married couples are Federal. And under the Defense of Marriage Act, Federal law does not recognize same-sex marriage.

So what the State of California (and the Commonwealth of Massachusetts) giveth, the Feds taketh away. This means all Federal tax laws, including the unlimited marital deduction and married income tax filing status, are not available to legally married same-sex couples.

What does this mean for estate planning? Basically, it means that a lot of the planning must still be done as though the couple is unmarried and unrelated. This can create a more complicated estate plan, particularly if there are estate or gift tax issues. Fortunately, there are very good estate planning attorneys who specialize in planning for same-sex couples, and can structure their plan to account for the lack of rights under federal law. As always, you should choose your estate planning attorney very carefully. Talk to a lot of attorneys and others whom you trust. Almost as important as the expertise of the attorney is how comfortable you feel with your counsel. Estate planning is a process that you will engage in for the rest of your life, so it is important that you make the choice of counsel very carefully.

Who's up for challenging the Constitutionality of the Defense of Marriage Act?