Call for a Complimentary Consultation (813) 852-6500

Defense of Marriage Act Held Unconstitutional in Lower Federal Courts

By Howard C. Stross
July 16, 2012


In the federal lawsuit entitled Windsor v. United States, the federal court held that the federal law called the “Defense of Marriage Act” or DOMA violates the U. S. Constitution’s equal protection clause of the 5th Amendment.

In Florida estate planning and all other states of our union, married couples, but not same sex couples, may use the estate tax marital deduction which may mean the difference of paying $-0- in estate tax or hundreds of thousands of dollars in federal estate tax, a/k/a death taxes.

Edith Windsor sued the U. S. government because the government did not consider her as being married for over 40 years to her partner, Thea Spyer, now deceased. Because of DOMA, the estate of Edith’s partner got a bill from the government for approximately $363,000. The reason for the tax is that Edith was not allowed to take the marital deduction that is available to married heterosexual couples at the death of one of the spouses.

This case marks the 4th time that I’m aware of that a court has held DOMA to be unconstitutional.

  1. If the decisions are upheld by higher courts, that would allow same sex marriages and possibly so called “civil unions” to be valid under federal law.
  2. If DOMA is ultimately held to be invalid, same sex couples would then be able to file joint income tax returns and receive the benefit of the federal estate tax marital deduction, along with other benefits that are bestowed upon married couples by law.

Before same sex couples may use the Windsor case, the lower court’s decision will no doubt go through the appeals process in the federal court system and may reach the U.S. Supreme Court. If the U. S. Supremes hear the case and agree with the federal circuit court, then same sex couples will be able to use the marital deduction in estate planning and benefit from other favorable treatment married, heterosexual couples currently receive.

Stayed tuned. Assuming the case does go to the U. S. Supreme Court, it will be many months before we may read about a decision as to whether DOMA is good or bad law.

Related Articles

Why You Should Consider Putting Your LLC into a Trust

Why You Should Consider Putting Your LLC into a Trust

The limited liability company (LLC) is a popular business structure that offers liability protection and avoidance of double taxation. Trusts are popular asset transfer vehicles that allow you to avoid probate and some trusts act as asset protective devices. By...

read more

Sign Up for Our Newsletter

Peace of Mind Estate Planning Program Best Probate Attorneys in Tampa

Blog Categories


Looking for immediate answers to your questions?

Schedule a complimentary consultation today!


The lawyers at the Stross Law Firm, P.A. invite you to call or e-mail to arrange a free 30-minute consultation regarding your legal and advisory needs concerning business law, real estate, estate planning, probate and trust administration. We serve clients throughout Florida. Find out how we work and how we may be able to help you.