Two Federal District Court cases held the Defense Of Marriage Act (hereinafter referred to as “DOMA” or the “Act”) to be unconstitutional. One found it violated the Fifth Amendment’s due process clause (Gill v. Office of Personal Management), and the other held that it violated both the Tenth Amendment and the Constitution’s spending clause (Massachusetts v. U.S. Department of Health and Human Services).

Enacted by Congress in 1996, DOMA keeps the Federal Government from recognizing same-sex marriages. The Act defines the word “marriage” to only mean the “legal union between one man and one woman as husband and wife.” The effect of this law is to deny all federal marriage benefits to same-sex couples, even to those same-sex couples who have been married under the laws of a jurisdiction where same-sex marriage is valid. Currently, the states of Connecticut, Iowa, New Hampshire, and Vermont, as well as the Commonwealth of Massachusetts and the District of Columbia have held such marriages to be legal. Several foreign countries also legally recognize marriage between same-sex individuals, including, but not limited to, Argentina, Canada, the Netherlands, South Africa, and Spain.

In the Gill case, the court held that DOMA violated the Fifth Amendment’s equal protection doctrine as set forth in its due process clause, because it denied federal rights and benefits to plaintiffs (who were federal government employees) to which they were entitled, based on their federal employment. These rights included health and Social Security benefits, as well as the right to file joint federal income tax returns. In the Massachusetts case, the court held that the Act violates the Tenth Amendment, by forcing the plaintiff (the Commonwealth of Massachusetts) to engage in discrimination against its own citizens.

On Summary judgment, the same judge decided both cases in favor of the plaintiffs on July 8, 2010. If appealed, the case must be filed with the First Circuit Court of Appeals by September 6, 2010. Obviously, the losing parties there will petition the United States Supreme Court for review.

If DOMA is ultimately held to be unconstitutional, the federal tax and estate planning implications for same-sex couples will be very interesting. Such implications might include the following:

- Joint Tax Returns. Will married same-sex couples be able to file joint returns? Striking down DOMA may not conclusively allow for joint filing since Internal Revenue Code Section 6013(a) specifically states that a “husband and wife” may file joint returns, rather than allowing for “spouses” to file. It should also be noted that the filing of joint returns does not always result in a lower tax, bearing in mind the marriage “penalty” that is sometimes paid by couples were both spouses earn approximately equal incomes.

- Estate and Gift Tax Marital Deduction. Section 2056(a) makes the marital deduction available for transfers passing from a “decedent to his surviving spouse.” This would seem to include transfers between federally recognized same-sex spouses. Gift splitting would also seem to apply.

- Retroactivity. Will the ruling be retroactive, allowing for the filing of amended returns? If so, income tax refund claims should be made for all prior years. Refunds might also be sought for gift tax paid on transfers between same-sex spouses where the unlimited marital deduction was not available. Divorced couples might also consider filing for a refund for years in which they were married. Executors of estates where the decedent was party to a same-sex marriage might also consider filing for a refund.

- Application to Civil Unions. If the Act is struck down, might registered domestic partnerships, like what we have here in Nevada, also be afforded marriage-type rights in tax planning? If so, how would our community property laws be applied? Might the IRS be required to boost basis for community-like property having passed from a deceased same-sex partner? While much of this discussion focuses on unlikely scenarios, it is provided to illustrate the complexity created by a retroactive law being broadly applied to legally recognized same-sex relationships.

If you are getting married, already married, or just living with your significant other, you might consider making an agreement with your partner to clearly define your rights with respect to your separate and jointly-held property. Each of these personal relationship contracts can be briefly explained as follows:

The Prenup. A prenuptial agreement, or premarital agreement as it is sometimes called, is a contract entered into prior to marriage by those people intending to marry each other. The provisions of this contract may vary widely, but commonly include terms for how property will be divided and how spousal support will be handled in the event of divorce or separation. Prenups should be completed and signed by both parties with ample time before the wedding. If signed at the last minute, one party could later make the argument that they entered into the agreement because of undue influence or in a state of duress. Moreover, each party should be represented by his or her own separate attorney to avoid the later argument that unbalanced or unfair bargaining took place. In every case, a prenup must fully disclose the assets, liabilities, and incomes of each party. Leaving such financial information out could potentially invalidate the entire agreement. Full disclosure is the best policy.

The Postnup. Postnuptial agreements, or separate property agreements, are written contracts entered into by and between husband and wife after they are married. Like a prenup, a postnup establishes how a married couple’s assets and affairs will be settled in the event of a separation or divorce. Without a prenup or a postnup, state statues will determine the nature of a couple’s property: whether it is community property, jointly-owned, or separate property. As with a prenup, both spouses should be represented by their own attorney when entering into a postnup.

The Cohab. A cohabitation agreement is a legal agreement between partners who are unmarried and have chosen to live together and desire to protect themselves from the needless cost of litigation should their relationship break down. Although such parties do not develop community or marital property rights as a married couple would, a cohab can assist in sorting out complex contractual rights which may develop as related to jointly purchased property, debts, etc. Such an agreement is intended to bind both parties such that when the relationship ends, the procedure for splitting-up is understood. Again, it is highly recommended that each party have their own separate legal counsel.

Last night, attorney, Jeremy Cooper, attended a Las Vegas Chamber of Commerce seminar hosted by the Human Rights Campaign addressing Smart Financial and Estate Planning for LGBT individuals and families. Half of the presentation focused on the new Domestic Partnership law of Nevada and the current state of this evolving area of law. The other half focused on estate planning for LGBT individuals and families. The following is a brief overview of the recently enacted Domestic Partnership legislation followed by some estate planning recommendations for those in the LGBT community:

Domestic Partnerships

During 2009, the Nevada legislature enacted legislation recognizing Domestic Partnerships between individuals who have properly registered with the state. A Domestic Partnership is a social contract between two persons that grants each partner different rights not available to non-married couples. To establish a legal Domestic Partnership, partners must furnish proof to the Secretary of State that both persons share a common residence, neither partner is married or part of another domestic partnership, the individuals are not related by blood, both individuals are at least 18 years of age, and both individuals are competent to consent to the domestic partnership.

Upon establishing a valid Domestic Partnership, domestic partners have the same rights, protections, and benefits granted to married spouses. Domestic partners are also subject to the same responsibilities, obligations, and duties under law as imposed upon married spouses. These rights and obligations include, but are not limited to, child support, alimony, community property rights, mutual responsibility for debts to third parties, etc. Deciding whether a couple should register as a Domestic Partnership is a very intimate and personal decision that should not be made without understanding the legal ramifications of doing so. Jeffrey Burr recommends consulting with a family law attorney who is experienced in dealing with the LGBT community.

Estate Planning Tips

Because of the unique legal challenges facing the LGBT community, it is vital that valid and comprehensive estate planning be put into place regardless of whether a committed LGBT couple decides to register as a Domestic Partnership in Nevada. First and foremost, proper estate planning by LGBT individuals should ensure that the right people are making the right decisions regarding one’s health care and asset management when the time comes, as well as distributing property to the intended beneficiaries at death. LGBT individuals and couples should strongly consider obtaining the following documents:

1. Powers of Attorney for Health Care and Financial Matters and Directives: These documents are extremely important for LGBT couples who decide not to register as Domestic Partners and for Domestic Partners when traveling outside of the state of Nevada or other states that do not recognize Domestic Partnerships. These are the documents that will allow your partner to make health care and asset management decisions for you if that is what is desired.

2. Wills and/or Trusts: These documents are also very important because they will determine to whom your property will be distributed at your death. Without a will or a trust, property will pass to ones heirs as determined by the state laws of intestacy which does not provide for property to pass to an LGBT partner unless the partnership has registered as a Domestic Partnership. These documents will also nominate guardians for one’s estate, person and minor children.

3. Partnership Alliance Agreement or Property Agreement: This document is essentially the same type of agreement as a Premarital, or Prenuptial, Agreement in that it establishes property brought into the partnership, how new property and income will be treated during the partnership, and how property will be distributed upon dissolution of the partnership. These documents can be prepared for LBGT couples whether or not they have registered as domestic partners.