Legal Blog

The Weekly Scenario from Steve Shane – 7.1.13

Question: Now that the Supreme Court in the Windsor decision has struck down DOMA’s (The Defense of Marriage Act’s) definition of marriage as being limited to a union between a man and a woman, what does this mean for estate planning for same sex couples? Answer: By striking down that definition, the Court has opened up access for same-sex married couples to numerous federal benefits. Now two individuals who are legally married may rely on this decision in planning their estates. What this means is that from a tax perspective couples should now be able to obtain the benefit of the marital deduction for estate and gift tax purposes and also have the ability to split gifts for gift tax return purposes. In Maryland, a same sex married couple may take advantage of both federal and Maryland law to defer and minimize estate taxes. And those other estate planning techniques that have been available to opposite sex married couples are now available to same sex married couples as well (e.g., the ability to utilize ‘portability’). Comment: The decision has wide and far reaching implications. Now, couples who are married in states that recognize same-sex marriage will generally be considered married for purposes of more than 1,000 federal laws (reportedly). Married same-sex couples will be entitled to the same federal tax treatment as married couples generally, such as whether such same-gendered couples will be entitled to social security benefits based on the earnings and status of a same-gender spouse. The decision also has implications for labor and employment and benefits laws. For example, the Family and Medical Leave Act (FMLA) entitles many employees to take unpaid leave to care for a spouse with a serious health condition. In states that recognize same-sex marriage, employees may now have a right to FMLA leave to care for a same gender spouse. The decision also may affect employee benefit plans. One question that isn’t so clear is how this all might work for same-sex married persons who got married in a state that permits same sex marriages, but moved and presently resides in a state that does not. The federal law here may be more settled, but not so much on the state level. Steven E. Shane Principal Offit│Kurman Attorneys At Law 301.575.0313 Washington 443.738.1513 Baltimore 410.218.9339 Mobile 301.575.0335 Facsimile Please note the above material discussed is intended to provide only general information. Do not, under any circumstances, solely rely on this information as legal advice. Legal matters are often complicated. For assistance with your specific legal problem or inquiry please contact me directly.