Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional

On June 26, 2013, the United States Supreme Court, in U.S. v. Windsor, ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional under the Due Process Clause of the Fifth Amendment.

Under DOMA, the federal government had defined “marriage” as between one man and one woman. As a result, same-sex marriages that were legally recognized in many states did not enjoy full rights and responsibilities under federal law. The Windsor case marks a monumental shift: the federal government will recognize “marriage” as defined by each state.

As a result, same-sex couples legally married under state law will now have many federal income and estate planning opportunities that were previously unavailable to same-sex couples. Some such benefits include the option to file federal income taxes jointly or individually, eligibility for the marital deduction for lifetime and testamentary transfers whether made outright or in a marital trust, the option to elect to split gifts on federal tax returns, the ability to elect portability of a deceased spouse’s unused applicable exclusion amount, spousal IRA rollovers, entitlement to Social Security benefits or other spousal survivorship benefits available under many federal programs, and immigration protections.

The Windsor case did not challenge Section 2 of DOMA. Section 2 affords all states and territories the right to deny recognition of the marriage of same-sex couples that originated in states where they are legally recognized. This will continue to cause complexity for same-sex couples that reside in or move to a state that does not recognize same-same marriage. The Marriage Equality Act has been in effect in New York since 2011.