Revisiting Estate Planning Post-DOMA


The Supreme Court issued decisions in two landmark cases involving same-sex marriage on June 26, 2013.  In United States v. Windsor, the Court held Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional, which had defined “marriage” for Federal purposes to be between a man and a woman.   The Court dismissed Hollingsworth v. Perry on procedural grounds, effectively striking down Proposition 8 which had barred same-sex marriage in California.  


The result of Windsor and Perry is that same-sex couples who were married in California prior to Proposition 8 or who have or will be married following Perry, will now be treated as spouses for purposes of hundreds of Federal statutes.


The estate planning benefits now afforded to same-sex couples include:

  1. The ability to transfer wealth, either during life or at death, from one spouse to the other without incurring a transfer tax.
  2. The ability to defer estate taxes at the death of the first spouse.
  3. The ability to defer income taxes where a spouse inherits a deceased spouse’s IRA or other qualified retirement plan.

Clients in same-sex marriages who have engaged in estate planning or those who have held off pending certainty in the law are urged to contact us to discuss whether newly available planning techniques should be considered. In certain circumstances, you may even be entitled to a refund of income, estate, or gift taxes paid during the last 3 years.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Farella Braun + Martel LLP | Attorney Advertising

Written by:


Farella Braun + Martel LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.