On June 26, 2013, the Supreme Court ruled that Section 3 of the
Defense of Marriage Act (DOMA) is unconstitutional as it violates
the due process and equal protection clauses under the
Constitution. Edith Windsor brought the case,
United States v. Windsor, after the death of her
spouse, Thea Spyer. Spyer's estate was required to
pay more than $363,000 in federal estate taxes related to the
inheritance of her spouse's estate. If allowed the
same status as a heterosexual spouse, Windsor would have
qualified for an unlimited spousal deduction, and paid no federal
estate taxes. With the demise of DOMA, married
same-sex couples who paid estate or gift tax on gifts or bequests
between spouses may be able to claim a refund of the tax
paid. If you can potentially make a refund claim, you should
file that claim as soon as possible.
The part of DOMA that was struck down provided that the word
'marriage' means only a legal union between one man and one
woman as husband and wife, and the word 'spouse' refers
only to a person of the opposite sex who is a husband or a
wife. As a result of the Windsor decision, anyone
who is considered married under applicable state law will be
treated as married for federal law purposes, including most
provisions of the Internal Revenue Code. (The
Windsor case did not involve Section 2 of DOMA, which says
that no state is required to recognize a same-sex marriage that
occurred under the laws of another state.) Since the issue is
one of constitutional law, the invalidation of the definition of
marriage in DOMA is effective retroactively.
The Internal Revenue Code limits the time to file a claim for
refund. In general, a claim for refund must be filed within 3
years of the date on which the return was due (including
extensions), or within 2 years of the date of the payment of the
tax, if that date is later. Without action by Congress to
change the applicable statute of limitations, claims filed beyond
that date would be time barred. Any person with this issue
who could potentially make a claim for refund should file that
claim as soon as possible.
This article is designed to give general information on the
developments covered, not to serve as legal advice related to
specific situations or as a legal opinion. Counsel should be
consulted for legal advice.
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Though I could count the instances on one hand, I have had a few
cases in my career where a client had a legitimate concern about
their former spouse or their child's parent attempting to
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