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Definition of Marriage Challenged

October 17, 2012

BIG NEWS! The tax court has okayed estate tax marital deduction for same-sex couple.

The IRS is the muscle behind enforcing the law. As of right now, the Defense of Marriage Act (DOMA) defines marriage as a union between “one man and one woman.” Recently a spouse of a same-sex marriage challenged this notion in regards to the estate marital deduction and won, setting precedence in court and providing opportunities for taxpayers who fit similar situations.

In 1963, Edie Windsor (plaintiff) met her late-spouse, Thea Spyer, in New York City. The couple formed a relationship and lived together soon afterwards. In 1993 New York recognized “domestic partners” to which Windsor and Spyer registered as soon as the option was available. In 2007, when Spyer’s health began to decline, the couple decided to get marriage in Canada where marriages between same-sex couples are allowed. Two years later, in 2009, Spyer died and left her estate to her spouse. Due to the enforcement of DOMA, Windsor did not qualify for the unlimited marital deduction under 2056(a) and was required to pay $363,053 on Spyer’s estate.

DOMA, an act signed in 1996 during the Clinton administration, was justified that it advanced the government interests by:

  • Defending and nurturing the institution of heterosexual marriage.
  • Defending traditional notions of morality.
  • Protecting state sovereignty and democratic self-governance.
  • Preserving scarce government resources.

Windsor sued for a refund of the $363,053 based on the fact that this act violates the Equal Protection Clause of the Fifth Amendment. Windsor further argued that DOMA should be subject to “strict constitutional scrutiny” because homosexuals are a “suspect class.” Consequently, Windsor further argues that, with a higher scrutiny, this act fails because DOMA is too narrow to advance the government interest and the grounds for this act are irrational.

A suspect class is a group of people who have a history of discrimination, an easily discernible characteristic and political powerlessness. When an act can put a suspect class at a disadvantage, the courts must review the act more carefully (strict constitutional scrutiny). The act must be “substantially related to legitimate state interest” to survive constitutional attack.

Although Congress defended DOMA in Windsor v. U.S., Windsor was ultimately given a summary judgment in her favor. She was allowed the full refund based on 2056(a) marital exclusion. In 2011 Attorney General Holder instructed the courts to no longer defend DOMA. Although the Court has ruled in Windsor’s favor, DOMA has not been repealed nor rules as unconstitutional. The Court simply did not defend it and denied Congress’s petition for dismissal.

Presumably, the IRS will still enforce marriage as between one man and one woman. Taxpayers who are married to a same-sex individual and wish to fight this can file a tax return as single, pay the tax, amend it to be married while attaching a disclosure that DOMA is unconstitutional and their spouse is part of the same-sex. Afterwards, assuming the IRS denies it the client can sue for damages based on precedence of Windsor v. U.S. If taxpayers do not wish to go to court or don’t have the resources to do so, they can simply file as they normally would have. If the law is changed, they may be able to amend their returns. If DOMA is repealed, tax payers will not only be eligible for the estate marital deduction, but also be eligible for the favorable IRA treatment, and dependency exemptions.

At G.A.I. we are able to navigate through these often times muddy waters. Give us a call at 615-730-9444 and visit our website at We can help you with all of your ta and bookkeeping needs. You work hard for your money, let us work smart to help you keep it!

2 Comments leave one →
  1. October 18, 2012 8:35 pm

    very simply explained. It is indeed an art to read & stop new visitors with your attractive writing style. I am really impress from your posted information. Thanks for sharing.

  2. March 13, 2013 7:23 pm

    Thank you for sharing this useful information.

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