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Understanding the DOMA Ruling

On June 26, 2013 the Supreme Court of the United States held Section 3 of the Defense of Marriage Act (“DOMA”) unconstitutional “as a deprivation of the liberty of the person protected by the Fifth Amendment” in United States v. Windsor, an estate tax case.  As a result, the federal government must henceforth recognize same-sex marriages as valid if they are conducted lawfully in a state that allows them.    This means that legally married same-sex couples will be able to file joint income tax returns and will qualify for other income and estate tax benefits previously associated with marriage between a man and a woman.

However, the DOMA ruling does not mean that states have to recognize same-sex marriage.  Georgia has a constitutional ban on same-sex marriage.  Therefore, same-sex couples in Georgia remain under the same rules that existed prior to the DOMA ruling.  That is, same-sex couples may not file joint Georgia income tax returns.  Further, a same-sex partner will not be treated as next of kin for purposes of medical decision making or sharing of medical information under HIPAA.  Likewise, it will remain difficult for a same-sex partner to get appointed as guardian or conservator of their partner without proper estate planning documents.

But what if Georgia same-sex couples legally get married in another state or move to Georgia from another state where they were legally married?  Well, no one is really sure what that means for them on a federal level.

“I think (the ruling) gives a false confidence that everything is taken care of and it’s not,” University of Florida Estate Planning Professor Lee-Ford Tritt told the Tampa Bay Times. “It’s going to be very confusing for people.”

For federal income taxes, it seems like the IRS will need to change its policy on filing jointly since it currently considers a state of residence.  This appears to be something that can be administratively fixed.  The status of many other federal benefits is still uncertain in a situation like this.

Regardless of a same-sex couple’s marital status in Georgia, well drafted estate planning documents, including wills, health care directives and financial powers of attorney, can incorporate many of the otherwise available benefits for same-sex couples.


For more information regarding this or any other estate planning concern, please visit the Hoffman & Associates website at www.hoffmanestatelaw.com, call us at 404-255-7400 or send us an email.

In accordance with IRS Circular 230, this article is not to be considered a “covered opinion” or other written tax advice and should not be relied upon for IRS audit, tax dispute, or any other purpose. The information contained herein is provided “as is” for general guidance on matters of interest only. Hoffman & Associates, Attorneys-at-Law, LLC is not herein engaged in rendering legal, accounting, tax, or other professional advice and services. Before making any decision or taking any action, you should consult a competent professional advisor.