Possible Demise of DOMA

Jerry Simon Chasen (Attorney at Law, Miami, FL) recently published his article entitled Is DOMA Doomed?, 25 Prob. & Prop. 23 (Jan./Feb. 2011).  The introduction is below:

Within a four-week period last summer, three U.S. district court decisions were handed down that call into question the constitutional viability of the federal Defense of Marriage Act (DOMA). Because this law bars legally married same-sex couples from enjoying the 1,138 rights, benefits, and privileges extended to married couples under federal law— probably chief among which, for estate planners, are the unlimited marital deduction (when there is an estate tax) and the additional step up (when there is not)—the demise of this law would have a significant effect on planning for this population.

The three decisions are Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010) (Tauro, J.) (“Gill”); Commonwealth of Mass. v. Dep’t of Health and Human Servs., 698 F. Supp. 2d 234 (D. Mass. 2010) (Tauro, J.) (“Commonwealth”); and Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (“Perry”). Although the first two deal directly with DOMA, it is the third which most calls the statute’s status into question. After a brief review of DOMA’s history, I will discuss each of the three cases, their holdings, and their application to the statute generally. Finally, I will end with ten suggestions about planning for same-sex couples in this uncertain legal environment.