Defense of Marriage Act goes to Court

Attorney Amber Williams

Amber Williams, Attorney

The Defense of Marriage Act(DOMA) has created controversy ever since it was signed into law over 15 years ago. The law defines marriage as between a man and a woman. Therefore, same-sex marriages are not recognized by the federal government for benefits and tax purposes. However, ten states have enacted laws that allow same-sex marriage. Florida is not one of them. This creates a very confusing patchwork of overlapping definitions of the legality of same-sex marriage and the benefits those couples are entitled to at both the state and federal level. Regardless of where you stand on the divisive issue of same-sex marriage, DOMA is very important for determining who has spousal legal rights, and what those rights extend to.

Recently, DOMA was challenged in the First Circuit Court of Appeals on the grounds that DOMA violates equal-protection guarantees and interferes with the rights of states to make their own laws. If struck down, the legality of same-sex marriage will be further complicated. In that case, the Supreme Court may consider it during their next term to better clarify for the country what the proper balance is between the federal government and the states concerning marriage legislation.

Currently, same-sex couples are not entitled to a myriad of tax, estate, and other federal benefits from the government, including:

  • Filing joint income tax returns
  • Creating a “family partnership” for taxable business profits
  • Receiving any social security death benefits including the federal lump-sum death benefit to help pay for funeral costs
  • Any veteran or military benefits like health care, death pensions, educational assistance and home loan guarantees
  • Sharing federal employment benefits if one of the partners works for the federal government
  • Intestate right to inherit from a spouse
  • Homestead inuring to the surviving spouse
  • Right to the elective share
  • Alimony payments following a dissolution

If the DOMA challenge in the First Circuit Court of Appealsis successful, most likely moving it up the federal judicial hierarchy to the Supreme Court, some or all of these rights may become available to same-sex married couples. While the legal status of same-sex marriage is being challenged at the federal level, the states still control the legality of marriage within their borders. Therefore, for the foreseeable future, marriage in the state of Florida will only be between a man and a woman.

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