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The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Five of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






Contact Info

The Wagner Law Group


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7121 Fairway Drive
Suite 203
Palm Beach Gardens, FL 33418


New York Office

Tel: (716) 650-5987

Fax: (716) 633-0301

333 International Drive

Suite B-4

Williamsville, NY 14221


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 829-4385

315 Montgomery Street

Suite 902

San Francisco, CA 94104







October 25, 2012 

 State and Federal Law Alert




Defense of Marriage Act Again Declared Unconstitutional




The United States Court of Appeals for the Second Circuit has ruled that Section 3 of the Defense of Marriage Act ("DOMA") is unconstitutional.


An 83-year-old New York resident, who had married her same-sex partner in Canada, challenged the law after her partner's death. She sued in her official capacity as the executor of her spouse's estate, seeking a refund of estate taxes that would not have been assessed under the spousal exclusion for estate taxes.


Like the First Circuit (see the Alert of 6/14/12), this Court limited its decision to Section 3 of DOMA which defines "marriage" for federal purposes as "a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."


The Court agreed with the First Circuit's ruling and determined that Section 3 of DOMA was discriminatory and unconstitutional. The Court did not rule on Section 2 of DOMA which gives individual states the right to recognize or not recognize same-sex marriages of other states.


As noted in the previous Alert, if the decision is upheld on review by the U.S. Supreme Court, or the Supreme Court refuses to hear the case, then same-sex couples in states that recognize such marriages could obtain marriage-based federal rights and benefits, including rights to COBRA continuation; HIPAA Special Enrollments; and cafeteria plan pre-tax contributions and status change events. Retirement plan rights would include ERISA's spousal survivor benefits. In addition, same-sex spouses would be entitled to certain Social Security benefits.


This case comes just after recent IRS guidance for same-sex couples (see http://www.irs.gov/uac/Answers-to-Frequently-Asked-Questions-for-Same-Sex-Couples)when preparing their tax returns.


According to the IRS, same-sex tax filings must be in accordance with DOMA. As such, same-sex spouses:

  • cannot file their federal income tax returns using the "married filing jointly" or "married filing separately" filing status, even when their union is recognized by their home state;
  • cannot file as head of household based solely on a same-sex partner, even when that partner is their dependent;
  • can claim adoption credits if they adopt a child;
  • can determine which parent can take a dependency credit for a child they share (similar to divorced or other non-married parents); and
  • can take a standard deduction even when the other spouse itemizes deductions (which is prohibited for opposite-sex married couples).

Additional IRS information on same-sex couples in community property states can also be found at:  http://www.irs.gov/uac/Questions-and-Answers-for-Registered-Domestic-Partners-and-Same-Sex-Spouses-in-Community-Property-States.





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Pursuant to Internal Revenue Service Circular 230, we hereby inform you that any advice set forth herein with respect to US federal tax issues is not intended or written by The Wagner Law Group to be used and cannot be used, by you or any taxpayer, for the purpose of avoiding penalties that may be imposed on you or any other person under the Internal Revenue Code.


This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.