Sunday, June 30, 2013

DOMA and Prop 8

In light of the events in the Supreme Court last week, both of which affect my primary areas of practice, being Family Law and Estate Planning, as well as other areas of law and rights, I thought a brief commentary might be worthwhile.

First, Proposition 8 was legislation in the State of California made, at least in part, in response to the City and Count of San Francisco, allowing for Same Sex Marriage.  Prop 8 prohibited Same Sex Marriage by attempting to limit a definition of marriage as being only between a man and a woman.  Through a variety of legal and appellate gyrations, the Court of Appeals determined that Prop 8 was unconstitutional as violative of individual rights, ostensibly under various equal protection, due process and anti-discrimination aspects of law flowing from the 14th Amendment.  Advocates for Prop 8, and against gay marriage, appealed.  The U.S. Supreme Court, rather than endorsing gay marriage, ruled on legal procedures, claiming that the advocates for Prop 8 were not harmed by the ruling against Prop 8 and thus did not have legal standing.  Thus, the lower court ruling stands as valid, and same sex marriage is now allowed in California, and many marriages have been performed just in the few days since this ruling.  While this may not be a ringing endorsement for same sex marriage, the practical implication, when read in conjunction with a companion case addressing DOMA, the Federal Defense of Marriage Act, is to allow for States to determine all laws necessary to effectuate the union of two people, within their state.  As a result, California becomes the 13th state, joining Connecticut, Delaware, Iowa, Maine, Maryland, Maine, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington and D.C. in allowing for some type of same sex marriage.         

Second, as referred to above, the companion case to the Prop 8 case, struck down Section 3 of DOMA, the Federal Defense of Marriage Act.  When enacted in 1996, DOMA defined "spouse" and its related terms to signify a heterosexual couple in a recognized marriage, and by doing so, codified the non-recognition of same sex marriages for all federal purposes, including insurance benefits for government employees, social security survivors' benefits, immigration, bankruptcy, and the filing of joint tax returns, as well as excluding same-sex spouses from the scope of laws protecting families of federal officers, laws evaluating financial aid eligibility, and federal ethics laws applicable to opposite-sex spouses.  The impact is estimated to be felt in over 1000 Federal laws.

In the 5–4 decision on June 26, the U.S. Supreme Court ruled Section 3 of DOMA to be unconstitutional, declaring it "a deprivation of the liberty of the person protected by the Fifth Amendment.”  While debate will be ongoing, especially as various states try to sort out this impact as well as their take on the Prop 8 matter as may apply to their states, and as various departments and agencies of the Federal government begin to re-interpret the practical application of what remains of DOMA, there appears to be a significant broadening of protections and rights of same sex couples, and those that become couples in their states.

So, has does this apply to you?  No easy answer there.  Let’s start by saying if you are a heterosexual person, it has no legal impact on you at all.  You were able to marry a person of the opposite sex, and for the benefit of my practice, you could either develop an Estate Plan together, or seek a Divorce.  Either way, I’ve got you covered.  Moving on, if you live in one of those 13 states or D.C., you have been and may continue to have a marriage with your same sex partner.  Now, while we need to see how things go, if you need to end that relationship, chances are, you will get a divorce, and I can help you there.  I will say, that with regard to reproductive rights and progeny, same sex couples, who can have children or adopt, may offer some unique fact patterns relative to children in divorce, but there again, we have routine formats to address most split custody matters, and if not, the courts are always there to help.  Furthermore, I believe all states have enacted Full Faith and Credit laws.  That is to say, one state will enforce the valid laws of another state, if called upon to address them.  Thus, if you are gay, and get married in one of those states that allow same sex marriages, and move to another state that does not allow for same sex marriages, you still have a valid marriage and should be extended all rights and responsibilities of a spouse.  There may be issues of some states allowing that, but I believe the default position would be to allow and in not doing so there would be Federal violations.  Just my opinion, but there have been similar changes over time, such as interracial marriages and travel over state lines.   

Perhaps more significantly, relative to Estate Planning, there are many rights, privileges and penalties extended through the Federal government that will have to be fleshed out, but should apply.  As noted above, tax filing status would be a prime penalty or option to sort out with your tax advisor.  Tongue in cheek but true.  Seriously, various survivor benefits, pension rights, insurance rights, and many other matters that may impact your Estate Plan and process may now be applicable for the same sex couple, just like any other married couple.  Prior to this last week, no such rights existed, and work arounds were part of Estate Planning for same sex couples, since they were not married, similar to that of long time companions of the opposite sex who simply never wanted to get married but wanted to provide for each other in their passing.  Irrespective of your beliefs on this issue, hopefully we will never have to hear about life long partners not allowed to be at the death-bed of each other, because they are not spouse or family.     

I am sure that in both of my areas of Divorce and Estate Planning there will be more changes and challenges in proper representation of the unique needs of my clients.  However, it is such changes that keep lawyers on their toes.  Make sure when trying to address these unique issues with your legal and other professionals that you share all facts and issues unique to your life, no matter how small, as you never know when something small may adversely affect proper representation by any professional on your A Team. (see my 6/9/13 blog -

In the blogs that follow, I will get back on track and discuss simple wills and the components necessary to make a complete and valid will.  However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at, or at for Fred Begun.