Estate Planning for California Same-Sex Couples. Trisha A. Vicario & Chelsea J. Hopkins

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1 Estate Planning for California Same-Sex Couples Trisha A. Vicario & Chelsea J. Hopkins

2 Legal Recognition for Same-Sex Couples Defense of Marriage Act (DOMA) In 1996, the United States Congress enacted the Defense of Marriage Act(DOMA). Pub. L. No , 110 Stat Three Sections: Definitions Reciprocity of Recognition Definitionof Marriage constrainedtoonemanandonewoman 2

3 Section Three of DOMA Section Three of DOMA provides: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife,andtheword spouse refersonlytoapersonof the opposite sexwhoisahusbandorwife. 3

4 Practical Effect of DOMA DOMA superseded all STATE definitions of marriage for FEDERAL purposes. Despite each STATE S definition of marriage, couples who werelegallymarriedinonestatewerenotrecognizedatthe FEDERAL level. STATES were still allowed to regulate marriage for STATE purposes. 4

5 U.S. v. Windsor Edith Windsor and Thea Spyer, were legally married in Canada in New York acknowledged their marriage as legally valid, but samesexmarriageswerenotgrantedinnewyorkatthattime. Thea Spyer died, and Edith Windsor paid $363,053 in Federal Estate taxes. Edith Windsor requested a refund via the unlimited marital deduction between spouses, but was denied because their marriage was not recognized at the Federal level. Edith Windsor brought an action in the United States District Court for the Southern District of New York, challenging Section 3. 5

6 Legal Effect of DOMA Prior to the passage of DOMA, the law of the state of domicile at death determined whether a couple was legally married. Post-DOMA, each Section of DOMA superseded the recognition of a same-sex marriage by any state. Preventing same-sex couples from receiving Federal benefits. 6

7 Appellate Process President Obama ordered the Department of Justice to withdraw supportfordomaandceasedefendingthecaseinalettertothe Speakerof thehouse,pursuantto28u.s.c. 530D. The United States District Court for the Southern District of New York granted the plaintiff Edith Windsor s motion for summary judgment, stating that the Federal government s application of DOMA to Edith Windsor s Estate Tax Refund request failed to meet the rational basis test. The United States Court of Appeals for the Second Circuit affirmed the decision. 7

8 Supreme Court Majority Opinion Standing InjuryinFact-TheCourtfoundthattheArticleThreerequirementsweremet because Windsor suffered a real economic injury when she was required to pay estate taxes from which, in her view, she was exempt but for the alleged invalidity of 3 of DOMA. Causation - The Federal Government caused the injury, in that the governmentdeniedherrequestforarefundof themoneyduetoher. Redressability - Windsor s injury is redressable by the Court because a judgment in Windsor s favor could order the United States to pay money that it would not disburse but for the Court order. Justice Kennedy noted that although the Executive Branch withdrew support for DOMA, since the Executive did not take the further step of paying Windsor the refund to which she was entitled under the Court s ruling the injury suffered by Windsor persisted and therefore was redressable. 8

9 Supreme Court Majority Opinion Constitutionality Federalism: Although the federal government may enact federal laws that regulate the meaning of marriage in order to further federal policy such laws maynotextendsofarastocreateabroadstatutewithlimitationsdirectedat a classof personsthatthelawsof [astate]havesoughttoprotect. Equal Protection: DOMA unconstitutionally violates substantive due process and equal protection guarantees because the law singles out same-sex couples, or a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty and imposes a disability on that class to strip them of such recognition, without a legitimate purpose [which] overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. Holding: This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. 9

10 Supreme Court Break-Down Majority Minority 10

11 Supreme Court Decision Open Issues No specified level of scrutiny regarding a depravation of Liberty under the Fifth Amendment for same-sex couples. Does not indicate that marriage is a fundamental right for same-sex couples. No discussion regarding recognition of same-sex marriages among states. 11

12 Three Categories of Same-Sex Relationships Currently, states afford rights and privileges to all couples based on the following three categories: Marriage Registered domestic partners Partners 12

13 Married Couples If a state allows same-sex marriage, or acknowledges validly conducted same-sex marriages of another state, then the couple is afforded the same rights, privileges and status as a heterosexual married couple. Conversely, if a state does not allow or acknowledge samesex marriages, then same-sex couples within those states are not afforded Federal rights, privileges and status. 13

14 Intra-State Recognition Section Two of DOMA Section Two of DOMA provides No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. 14

15 Intra-State Recognition U.S. v. Windsor The Windsor opinion affirms that determinations of who may marry are within the province of states rights, allowing the states to exercise tremendous power over the realm of domestic relations. CurrentStateof thelaw Each state may individually determine what intra-state same-sex relationships it will legally recognize and to what extent. This structure forces estate planners to discuss with same-sex clients where the clients plan to live and the geographic limitations of their estate plan. 15

16 Federal Benefits Effect of U.S. v. Windsor A legally married couple may obtain Federal benefits. Rule Options Place of Celebration v. Place of Domicile v. Unknown Place of Celebration -Definition of spouse determined based on where the couple gets married. Place of Domicile Definition of spouse based on the couple s domicile at the time of application for benefits. Unknown No guidance offered by the Federal government to date. 16

17 Place of Celebration Military and Veteran s Benefits Housing Shopping Transportation/Home leave Military healthcare Burial Rights **Proposed ten day leave to allow same-sex couples to marry in a recognition state. Immigration Family based immigration visa US citizenship based on marriage Social Security & Survivor s Benefits Now processing some retirement spouse claims for same sex couples and paying benefits when they are due. 17

18 Place of Domicile Medicaid/Medicare Spousal Impoverishment Recovery/Liens 18

19 Unknown Tax Benefits* Joint income tax returns Ability to amend past returns (income and estate) Gift Splitting Unlimited marital deduction Portability Joint tenant taxation GSTT Retirement Spousal Roll-Over for IRAs Employment/Health/401K* Federal employee benefits COBRA FMLA ERISA (default designations) ROTH IRA contribution limits *Likely place of CELEBRATION, but no specified rule accepted yet. 19

20 Unknown Bankruptcy Eligibility Real Property Reassessment Exclusion in CA Unknown in other states Election Contribution Limits Disclosure Rules Ethical considerations Copyright Rights 20

21 Important Consideration Mobility Currently, it is of supreme importance that you discuss with your client whether they are legally married in California, and if theyplantomovefromthisstate. If your client is mobile, then you must advise them how their Federal Benefits may be affected. 21

22 Hollingsworth v. Perry The U.S. Supreme Court s majority opinion stated that once the District Court issued its order, respondents no longer had any injury to redress, and the state officials chose not to appeal. The only individuals who sought to appeal were petitioners, who had intervenedinthedistrictcourt,buttheyhadnotbeenorderedtodo or refrain from doing anything. Their only interest was to vindicate the constitutional validity of a generally applicable California law. Holding: Appellants did not have standing to appeal the District Court s decision. Result: Vacated and remanded to the District Court, which deemed Proposition 8 unconstitutional. 22

23 California Rights/Benefits for Same-Sex Married Couples Proposition 13 Reassessment Exclusion Among Spouses Intestacy Presumptions Statutory Health Care Powers Children Joint State Tax Returns Community Property Principles Apply 23

24 Registered Domestic Partners Registered domestic partnerships represent a second and less uniform category of legally recognized relationships. The rights and privileges applicable to registered domestic partners vary from state to state, with some states not offering such legal status. California allows both same-sex couples and opposite sex couples that meet certain requirements to register as domestic partners within the state. 24

25 California Registered Domestic Partnerships In 2003 the California legislature passed the Domestic Partner Rights and Responsibilities Act of 2003 (the DPRRA ), codified as California Family Code Sections This act, effective January 1, 2005, extended most of the state law rights applicable to married couples to registered domestic partners. In essence, DPRRA expanded the construction of California statutes, administrative regulations, court rules, government policies, common law, and any other provisions or sources of law, except the California Constitution, broadening the terms spouse, husband, wife, widow, widower, marriage, and marital status to include registered domestic partners. 25

26 Registered Domestic Partnership Requirements Opposite Sex Partners AND 65+ (Receiving Age-Old Benefits) Same-Sex Partners 26

27 California Rights/Benefits for Registered Domestic Partners (RDP) Proposition 13 Reassessment Exclusion Among RDPs Intestacy Presumptions Statutory Health Care Powers Joint State Tax Returns Community Property Principles Apply 27

28 Federal Taxation of Registered Domestic Partners In 2010, the IRS concluded that for tax years beginning after December 31, 2006, a California registered domestic partner must report one-half of the community property income, whether received in the form of compensation for personal services or income from property, on his or her federal income tax return. Chief Counsel Advice (2010 CCA). Also [f]or tax years beginning before June 1, 2010, registered domestic partners may,butarenotrequiredto,amendtheirreturnstoreportincome in accordance with this CCA. Specifically acknowledging the validity of the California legal structure of taxation as it applied to California registered domestic partners. 28

29 Partners Thecategoryof partnersincludesallcouplesthathavenotmarriedor legally registered with the State in which they reside. Recognition occurs socially by virtue of the fact that the couple holds themselves out as having a relationship, however state and federal privileges of marriage or legal recognition typically do not apply to partners. Partners may co-habitate, have joint children, and joint finances leading them to desire a joint estate plan. The lack of legal recognition for their partnership is not an impediment to joint estate planning. Moreover, executing an estate plan is even more important for partners due to a lack of intestacy priority. 29

30 Practical Planning Considerations The First Meeting Initial Phone Call Training your staff regarding the appropriate language. Engagement Inquire regarding whether the couple desires a joint engagement(there may be benefits to separate planning). Client Questionnaire Create/Modify your form for same sex couples: State where married? Mobile? Joint Children? 30

31 Presenters and Information Trisha A. Vicario and Chelsea J. Hopkins are associates at Barulich Dugoni Law Group, Inc. and welcome any additional comments or questions that you may have. Phone: (650)

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