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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.


The Court’s opinion states that it’s 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.


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.


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!

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