Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, July 24, 2012

2012 Legislative Report

TrustsHerbert J. Sliger Jr. (Attorney, Arizona) recently published an article entitled, National Conference of Law and Corporate Fiduciaries: 2012 Legislative Developments Report, June 1, 2012. I have provided a small excert from the legislative report:

                                                   Civil Unions/Same-Sex Marriage    

As of the date of this Report, Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Washington, D.C. recognize same-sex marriages. Although highly significant state rights are accorded to same-sex spouses in those jurisdictions, the federal Defense of Marriage Act (DOMA) supersedes state law, and same-sex couples will not qualify as spouses for federal tax law purposes, so things like the unlimited marital deduction, QTIP elections, and gift-splitting are not available to same-sex couples.

On February 23, 2011, the U.S. Attorney General announced that the DOJ would no longer defend the constitutionality of DOMA and cases are currently being litigated. In Perry v. Brown, 2012 U.S. App. LEXIS 2328, a federal court of appeals held California’s ban on same-sex marriage unconstitutional. 

Maryland H. B. 438 – Adopted March 1, 2012; Effective January 1, 2013.

The bill recognizes the same-sex marriage of two individuals, provided they are not within defined degrees of kinship, e.g., grandparent, parent, child, or sibling.

Vermont H. 758 – Approved May 1, 2012; Effective July 1, 2012.

In 2000, Vermont enacted legislation permitting civil unions. In 2009, Vermont enacted legislation permitting same-sex marriage. A residency requirement for dissolving a marriage may cause unique difficulties for same-sex couples. If a couple entered into a same-sex marriage or civil union in a state that recognizes the relationship (like Vermont) but later moves to a state that does not recognize their marriage/civil union, how do they dissolve their relationship? If cannot be dissolved in a jurisdiction that does not recognize their marriage/civil union and they cannot satisfy a residency requirement in a state in which they no longer reside.

Under Vermont law, there was a 6-month residency requirement to institute a proceeding for a divorce or dissolution of a civil union. 

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