This morning, the U;S. Supreme Court issued a major decision in U.S. v Windsor as Executor of the Estate of Spyer which can be read here. In doing so, it has struck down the Defense of Marriage Act (DOMA) , thereby granting same sex marriages the same rights enjoyed by heterosexual married couples under federal law. The case was brought on by a widow, Edie Windsor who had been required to pay some $383,000 in estate taxes after the death of her wife Thea Spyer., The couple had been legally married in Ontario in 2007 and returned to New York which recognizes same sex marriage. Had they been a heterosexual couple, there would have been no estate tax to pay.
The decision has a wide ranging effect on a variety of issues since the federal government must now recognize the validity of same sex marriages which were legal in the jurisdictions where they took place. However, it is important to realize that there are important issues which remain unresolved. It would seem that the partners in a same sex marriage which occurred in one of the twelve states (thirteen counting California which joined those ranks today with the Court;’s dismissal of the Hollingsworth case upon the grounds that the California plaintiffs lacked standing to challenge Prop 8)might not be entitled to the benefits afforded heterosexual marriages in states which do not recognize same sex marriages.
Therefore, a gay or lesbian partner in a same sex marriage which was legal where it was made but who dies intestate in a state not recognizing his or her marriage creates a problem. It is possible that that person’s assets would flow not to the surviving spouse but to the next of kin as provided for in that state’s laws of intestacy .One wonders if state estate tax would be due if the deceased spouse was a resident of a state not recognizing his or her marriage.
In the case of a hospitalization, the rights normally enjoyed by a spouse to visit and make health care decisions would likely also not exist. Same sex couples must make sure that they have wills, health care proxies and living wills and, powers of attorney where appropriate. With these documents properly in place, most of the gaps in the law which continue to exist may be surmounted.