Berman & Asbel, LLP

How will DOMA affect estate planning in Pennsylvania?

On Wednesday, June 26, a major change was made to the laws affecting residents in the United States, including here in Pennsylvania. That change was not the enaction of a law, but one being overturned. According to the Supreme Court of the United States, the Defense of Marriage Act violates the constitution.

There has been some confusion over what this ruling does and does not do for same-sex couples and same-sex marriage in general, which matters for couples as they make their estate plans in Pennsylvania. In fact, the ruling in this case involved federal estate taxes. 

Specifically, in this instance two women had gotten married in Canada in 2007 where same-sex marriage was legally recognized. The couple then moved to New York where one of the partners passed away. The woman died at a time when New York had already passed legislation giving legal recognition to same-sex marriage. 

The problem for this couple was that when the partner passed away, DOMA was still in existence, denying estate tax benefits to the widow that were granted to widows of a heterosexual marriage. This resulted in a $363,053 tax bill, and that, the partner said was unconstitutional; the Supreme Court agreed. 

Important to note here is that the striking down of DOMA does not force other states to honor same-sex marriage or any other same-sex issue such as adoption. This means that the ruling applies to federal laws, in that legally married same-sex couples cannot be denied Social Security, Medicaid, income tax breaks, estate tax breaks or other benefits. However, it does not have an effect on state laws. 

Thus, in Pennsylvania, where same-sex marriage is not legally recognized, these couples will still have to keep that in consideration when creating complex estate plans. A discussion with an estate planning attorney can help same-sex couples create a plan that follows their wishes underneath the legal relationship between state and federal law. 

Source:, "DOMA ruling does not open floodgate for same-sex marriage in PA," June 28, 2013

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