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Obama's Shift on Gay Marriage Is Hopeful News for Widow Seeking Estate Tax Refund

  • February 25th, 2011

The Obama administration's decision to stop defending the Defense of Marriage Act (DOMA), which defines marriage as the union of a man and woman, may mean that the surviving spouse of a lesbian couple will be reimbursed for the $350,000 tax bill she paid on her wife's estate. But the outcome of the case may hinge on whether members of Congress step in to defend the marriage law themselves.

Edith Windsor and Thea Spyer became engaged in 1967 and were married in Canada in 2007, although they lived in New York City. Ordinarily, spouses can leave any amount of property to their spouses free of federal estate tax. But when Ms. Spyer died in 2009, Ms. Windsor, 81, had to pay Ms Spyer's estate tax bill because of DOMA, a 1996 law that denies federal recognition of gay marriages.

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Although New York State considered the couple married, the federal government did not and taxed Ms. Syper's estate as though the two were not married. (Spouses can leave any amount of property to their spouses, if the spouses are U.S. citizens, free of federal estate tax.) As ElderLawAnswers reported earlier, Ms. Windsor sued the U.S. government seeking to have DOMA declared unconstitutional and asking for a refund of the $350,000 in estate taxes she was forced to pay.

Now that President Obama and Attorney General Eric Holder have themselves declared this section of DOMA unconstitutional, the case is on a different footing. The government was scheduled to file a brief in the case on March 11, which it still intends to do but "it will obviously be consistent with the attorney general's statement," said Ms. Windsor's attorney, Roberta Kaplan, in an interview with The AMLaw Daily.

With both parties in agreement, this would seem to suggest certain legal success for Ms. Windsor, but members of Congress could retain counsel and defend the DOMA statute themselves. A Wall Street Journal blog reports that "Brian Brown, president of the National Organization for Marriage, which opposes same-sex marriage, said his group had already been meeting with members of Congress to ask them to intervene" in this and other DOMA legal challenges. The office of House Majority Leader John Boehner (R-OH) reportedly had no comment about whether he would get involved in any of the suits. Sen. Dianne Feinstein (D-CA) issued a statement that she intends to introduce legislation that "will once and for all repeal" the 1996 law.

Meanwhile, Attorney Kaplan, who is with the firm of Paul, Weiss, Rifkind, Wharton & Garrison, said she is hoping for a quick resolution, noting that her client "is 81 years old, has a serious heart condition, and is not getting any younger. We look forward to moving ahead with her case as expeditiously as possible so that she gets the justice that she so richly deserves."

In a statement, Ms. Windsor said: "There are not words to express my feelings given that President Obama and the Department of Justice have done the right thing by recognizing this fundamental principle that all people and all marriages are entitled to be treated equally under the United States Constitution. My only regret is that my beloved late spouse, Thea Spyer, isn't here to share in this historic moment. But in my heart, I feel that she knows."

Last Modified: 02/25/2011

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