U.S. Supreme Court declares section of Defense of Marriage Act unconstitutional

In United States v. Windsor, decided by the U.S. Supreme Court on June 26, 2013 , the Court declared unconstitutional the section of the Defense of Marriage Act (DOMA) defining a marriage as a legal union between one man and one woman.

The Court removed the federal government from marriage, leaving it to the states to determine if a legal union between two people is a marriage or not.

The following states and the District of Columbia recognize (or are set to recognize) same-sex marriage. The list is presented in chronological order, by the date of recognition.

  • Massachusetts—May 17, 2004 (date of operative court decision).
  • Connecticut—November 12, 2008 (date that operative court decision took effect).
  • Iowa—April 27, 2009 (date that operative court decision took effect).
  • Vermont—September 1, 2009 (effective date).
  • New Hampshire—January 1, 2010 (effective date).
  • District of Columbia—March 9, 2010 (effective date).
  • New York—July 24, 2011 (effective date).
  • Washington—December 6, 2012 (effective date).
  • Maine—December 29, 2012 (effective date).
  • Maryland—January 1, 2013 (effective date).
  • Rhode Island—August 1, 2013 (effective date).
  • Delaware—July 1, 2013 (effective date).
  • Minnesota—August 1, 2013 (effective date).
  • California—June 26, 2013 (via the Supreme Court's Hollingsworth v. Perry decision on Proposition 8).

For those same-sex couples that are married under state law, they are also now married under federal law for all purposes, including the following:

  • unlimited gift and estate tax marital deduction
  • the opportunity to consent to make “split” gifts (i.e., gifts to others treated as if made one-half by each)
  • non-recognition of income on sales between spouses
  • jointly filing a tax return which may produce a lower combined tax than the total tax paid by the same-sex spouses filing as single persons (but this can also produce a higher tax, especially if both spouses are relatively high earners)
  • employer-provided long-term care benefits
  • retirement plan and annuity surviving spouse options
  • social security spousal and survivor benefits
  • the opportunity for the estate of the first spouse to die to transfer the deceased spouse's unused exclusion amount to the surviving spouse
  • the opportunity for a surviving spouse to stretch out distributions from a qualified retirement plan or IRA after the death of the first spouse under more favorable rules than apply for nonspousal beneficiaries
  • the opportunity to get tax-free employer health coverage for the same-sex spouse

One question that was left open by the ruling is whether one state must recognize a same-sex marriage that is valid in another state.

Another important question is whether there are retroactive applications, such as enabling the filing for tax refunds.

We will continue to follow developments in this area of the law.