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
According to the IRS,
same-sex tax filings must be in accordance with DOMA. As such,
- 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
- 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;
determine which parent can take a dependency credit for a child
they share (similar to divorced or other non-married parents);
- can take a
standard deduction even when the other spouse itemizes
deductions (which is prohibited for opposite-sex married
Additional IRS information
on same-sex couples in community property states can also be found