Yesterday, California voters passed Proposition 8, which amends the California Constitution to limit marriage to a union between a man and a woman. What does this mean going forward? Here are some observations:
All Previous Same-Sex Marriages Are Still Valid
All same-sex weddings performed between the California Supreme Court's decision in In re Marriage Cases (2008) 43 Cal. 4th 757, on May 15, 2008, and midnight, November 3, 2008 will remain valid. California Attorney General Jerry Brown said yesterday that, because Proposition 8 was not retroactive, it will not apply to same-sex couples who got married in California before Election Day. Attorney General Brown also said that the State of California would defend the validity of the marriages if they are challenged.
Estate Planning is Unchanged
As I have previously posted, most estate planning tools are developed to deal with federal law, particularly federal tax law. The federal Defense of Marriage Act (or DOMA, 1 USC sec. 7) was passed by Congress in 1996 and essentially prohibits the federal government from recognizing same-sex marriage. This means that even legally married same-sex couples cannot take advantage of federal tax laws including unlimited tax-free transfers between spouses, joint filing of tax returns, etc.
From an estate planning prospective, this means that, legal same sex marriage or not, special estate planning is needed for same-sex couples to get around the restrictions of DOMA.
Registered Domestic Partnerships are Unaffected
The text of the amendment, which is only one sentence long, refers only to marriage. Same-sex couples can still register as domestic partners in California. Under California law, registered domestic partners are given all the same rights and duties (including community property and California tax filing) as married couples.
Conclusion
Legally, at least, life goes on pretty much as it did before. Symbolically, it's quite a different story.
Showing posts with label Same-Sex Couples. Show all posts
Showing posts with label Same-Sex Couples. Show all posts
Wednesday, November 5, 2008
Monday, October 27, 2008
DOMA Challenged on First Amendment Grounds
Charles Merrill has filed a lawsuit with the Federal Tax Court claiming that the Defense of Marriage Act violates the Establishment Clause of the First Amendment to the U.S. Constitution. This comes to us from the Tax Prof. Blog.
The Establishment Clause is an interesting choice. I would have picked the Equal Protection Clause, since restricting marriage to a man and a woman would seem to deny same sex couples a fundamental right (to take advantage of certain tax laws such as the unlimited marital deduction). But what do I know?
I will try to follow this as best I can.
The Establishment Clause is an interesting choice. I would have picked the Equal Protection Clause, since restricting marriage to a man and a woman would seem to deny same sex couples a fundamental right (to take advantage of certain tax laws such as the unlimited marital deduction). But what do I know?
I will try to follow this as best I can.
Thursday, June 19, 2008
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?
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?
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