The important result of these decisions is this: same-sex couples can now (once again!) be legally married in California, and a huge number of Federal benefits (in the areas of income tax, gift and estate tax, social security, immigration, and on and on) that DOMA previously withheld from legally married, same-sex couples are now largely available to any married couple. This is a huge event!
While certain things are clear, legally, there are still many questions. As estate planners and members of the legal community we need to figure some things out, and wait for other things to be resolved. And many of us are simply still overcoming our disbelief that we are seeing this day so soon.
The biggest questions exist with respect to multi-State issues (for example, you were married in a State where same-sex marriage is legal but live in a State where it is not) and how State and Federal treatment and benefits flow from those issues. Some Federal benefits grant spouses certain rights based upon the laws of the State of marriage, and others look to the laws of the State of residence. In addition, the Windsor decision did not rule on the provision of DOMA that gives a State the right to refuse to recognize the marriage of a same-sex couple even though that marriage was legal in the State in which it was performed. Although same-sex married couples now have broadly recognized rights, there is not a Federal, constitutional guarantee of a right to marry the same-sex partner of your choosing. For now, State-level activity - be it legislative, or a change in that state's constituion - recognizing only opposite-sex marriages has not been challenged across the board. This means that there is still inconsistent treatment of married couples in this country. It is also not clear how domestic partnerships and civil unions now exist in all of this. I am doing a lot of reading and learning every day.
The New York Times published a handy chart on some of the multi-State issues that you can see here. This chart is by no means definitive but it should orient you in space as you consider how the recent changes in law may impact you.
If you are a same-sex couple who is married and you've put together an estate plan, we should talk. If you are same-sex couple considering marriage and want to understand how this may change your estate plan, we should talk. There are ways to build flexibility into your plan with respect to estate taxes that have previously only been available to opposite-sex married couples. You may want to revise your estate plan to avail yourselves (and your beneficiaries) of some of these tools, or you may just want to talk things through to understand what it will mean to you to get married. Either way, call or email and we can figure out the pros, cons, and costs of what you can do.
In recognition of the fact that 36 states do not grant marriage rights to same-sex couples, I will discount my fees by 36% for clients who are same-sex couples updating their plans to account for the changes in the law. Hopefully, this will mark the beginning of the end of extra legal and accounting fees for same-sex couples.
This year my husband and I celebrate our 18th wedding anniversary. As the officiant at our wedding so wisely said, "Marriage is one heavy trip." Do not rush into it, or take its rights and responsibilities lightly. I do highly recommend it, though, when you are ready; my marriage is one of the best things that has ever happened to me! For us, the act of making vows in front of our community, and being recognized as a family by the powers that be, has strengthened our bond and our commitment to one another. I am so happy and proud that in the State that I call home this experience is open to any couple who wants it.
With love and on the side of love,