DOMA and Prop 8 Unconstitutional: Questions when Creating Estate Plans

Posted on Jul 15, 2013

After the Supreme Court ruling which overturned the Defense of Marriage Act, as well as California’s Proposition 8, same-sex couples have many new opportunities when creating their estate plans. They also must be aware of potential pitfalls. For those who married in the past, an entirely new plan may need to be created under the changing legal landscape. One such couple, David Huebner and John Barabino, is wrestling with this very issue.

Huebner and Barabino married in California prior to the enactment of Proposition 8. Their union is legal, with the recent Supreme Court rulings restoring same-sex marriage in California and extending federal benefits to legally married gay couples. Couples like Huebner and Barabino, however, still face a great deal of uncertainty. The couple married in California and adopted their 3-year-old son in that state. They live part time in Washington, however, and own a home in Utah. Utah does not recognize their marriage, but Washington does.

Supreme Court Justice Ruth Bader Ginsburg referred to the current state of same-sex marriage in the US as “skim-milk marriages,” in which same-sex couples may have a union that is recognized by general law but not state law. This creates significant tax concerns. Can the couple file jointly and claim the marriage deduction? Must they file separately in Utah? If one spouse dies in Washington, they could be entitled to social security benefits. Unfortunately, if one spouse dies in Utah, they might be denied. 

To combat these uncertainties and inequities, the new frontier of gay rights advocacy is to make same-sex marriage the law of the land, regardless of the state in which a couple marries, resides, or owns property.

To learn more about creating an estate plan involving same-sex marriage, contact the experienced Orange County estate planning attorneys at the Law Office of James F. Roberts & Associates, APC. Call our office today at (714) 459-5481.

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James F. Roberts
Founder and owner of the Law Office of James F. Roberts and Associates, a premiere estate planning law firm