UNITED STATES SUPREME COURT RULES DOMA UNCONSTITUTIONAL!

                                                HOT OFF THE PRESS - SCOTUS RULES - IT'S OFFICIAL

 

At 10:15 a.m. today the United States Supreme Court published its opinion in U.S. v. Windsor ruling that "DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment."  It is a historic day in our nation's history and growth.

Even though the District Court ruled against the United States and ordered the Treasury to refund to Mrs. Windsor the estate tax payment of $363,000.00 with interest, the government did not comply.  Now, Mrs. Windsor will finally receive her refund.

                      PRACTICALITIES: WHAT DOES THIS MEAN FOR SAME-SEX COUPLES?

     The Court's opinion states that its holding is confined to those lawful marriages.  This means:

1. that a same-sex couple must be married in a state that legalizes gay marriage in order for the couple to receive federal benefits and protections;
2. a civil union ceremony will be insufficient to apply for and receive federal benefits;
3. the marriage certificate is required in order to apply for and receive federal benefits;
4. states will still have the option of not permitting gay marriages or civil unions to be performed in that state;
5. same-sex couples can travel to a state that performs same-sex marriages (meeting the necessary requirements), get married and then return to the state where they live (which could be a non-recognition state such as Florida) and receive federal benefits.

                          WHAT SHOULD SAME-SEX COUPLES DO NEXT?

       After celebrating the decision, same-sex couples need to take important affirmative steps:

1. if you are not legally married make and implement arrangements to get married.
2. meet with an experienced elder law attorney to have legal documents prepared to create a management plan for your and your partner's potential incapacity (to avoid guardianship and protect your privacy) as well as an estate plan.
3. discuss with your elder law attorney how to protect and preserve assets should one spouse become ill and require long-term care so you know your rights under the Medicaid law.
4. discuss with your elder law attorney your and your childrens' right to Social Security survivor and dependent benefits, veteran and military benefits and a host of other benefits.
5. meet with your accountant to discuss how to file your tax returns going forward, and your options for retirement tax planning (i.e. I.R.A.s, 401(k)s).
6. meet with your financial advisor to review your retirement plan beneficiary designations and discuss revising those designations and providing the plan administrator with your marriage certificate in order to maximize your surviving spouse's inheritance.

                             UNDERSTANDING THE COURT'S OPINION

The Court in its opinion explained that in determining whether DOMA could validly intervene in same-sex relationships it looked at the history of state authority over marriage.  Historically, regulation of domestic relations has been exclusively decided by the States.  However, state laws that define and regulate marriage must respect the constitutional rights of its citizens.  DOMA has prevented same-sex couples from obtaining approximately 1,000 government benefits including, but not limited to:

• government healthcare benefits
• bankruptcy code's special protections for domestic-support obligations
• being buried together in a veteran's cemetery
• receiving spousal impoverishment protections under Medicaid law
• filing a joint federal and/or state tax return
• social security survivor benefits
• financial benefits to children of same-sex couples such as social security survivor benefits.

The Court eloquently wrote "[t]he liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying  to any person the equal protection of the laws."  The Court has determined that DOMA has no legitimate purpose (or connection to any particular area of federal law) and only served to disparage and injure those whom the State of New York (which permits marriages between same-sex couples) and other states who legalize gay marriage sought to protect.  "This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."

My law firm is committed to counseling individuals, couples and families about these issues.  We are happy to collaborate with your other professionals to create a comprehensive and balanced plan for your future.  Please visit my website www.fl-elderlaw.com and continue to read my blog for additional information about this legal development and attend our presentations in the community to be an educated consumer!

June is Gay Pride Month

June is Gay Pride Month

On Thursday June 6, 2013 I presented at The Pride Center in Wilton Manors for National Gay Pride Month.  I spoke about important legal developments for the LGBT community.  In case you were not able to attend here's a recap:

February 2013  The Department of Defense issues a memo stating that military departments will now begin to offer certain family and dependent benefits to same sex partners of military service members and their children.  The military  is changing its policy to ensure fairness and equality.  The service member and their partner will be required to sign a declaration attesting to their committed relationship. Implementation is expected by August 2013.

June 6, 2012 Windsor v. U.S. America, United States District Court Southern District of New York Court decides that the same-sex surviving partner of the decedent is entitled to the marital tax deduction from federal estate taxes (and should receive a refund of $353,000.00 paid in estate taxes). The basis of the decision is that the Defense Of Marriage Act deprives gays equal protection of law and has no rational relationship to achieving tax benefits.

May 31, 2012 First Circuit Court of Appeals (Boston, MA) rules that Section 3 of the Defense of Marriage Act (DOMA) which denies federal benefits such as tax, health and pension to same-sex couples is unconstitutional because it has a disparate impact. Massachusetts v. Dept. Health & Human Services

September 7, 2011 CMS issues a memorandum to State Survey Agency Directors regarding standards for patient visitation regulation. Hospitals that accept Medicare or Medicaid may not deny patient visitation rights based on the sexual orientation of the patient.  A violation of this rule will result in a monetary fine and loss of Medicare or Medicaid funding.

June 10, 2011 CMS issues a Survey & Certification Memorandum to State Medicaid Directors: States have the option of applying Medicaid lien, transfers of assets and estate recovery laws to same sex partners. Under current law married couples receive favorable treatment when one spouse becomes ill and applies for Medicaid.  The ill spouse can transfer assets to the healthy spouse without it affecting the Medicaid application.  Additionally, the healthy spouse is permitted to retain approximately $115,000.00 in countable resources.  Furthermore, at the death of the Medicaid spouse the Medicaid agency cannot seek to impose its lien against assets of the healthy spouse such as the homestead.  As of 2013, the State of Washington has implemented the option of offering these spousal protections to same sex couples.

September 22, 2010 Florida Third District Court of Appeals upheld a judgment of adoption of two children by a homosexual man. The Court ruled that Florida Statute 63.042(3) which prohibits homosexuals from adopting is unconstitutional because it violates the equal protection clause, right to privacy and due process under the Florida Constitution. DCF v. In Re Matter of Adoption of X.X.G. and N.R.G., 45 So.3d 79 (Fla. 3d DCA 2010).

April 15, 2010 President Obama issues a memo to the Secretary of Health & Human services to create a rule that prohibits Medicare and Medicaid hospitals from denying visitation privileges based on sexual orientation of the patient.

Stephanie Schneider, Esq. with Robert Boo, CEO Pride Center, Wilton Manors, Fl &
Co-presenter James Senior, Financial Advisor, Edward Jones

     Stay tuned to my blog and my website for up-to-date information when the United States Supreme Court issues its opinions in the two DOMA cases at the end of this month.