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Julie Garber

U.S. DOJ - Same Sex Couples Should Not Have to Pay Estate Taxes

By August 22, 2011

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Back in November 2010 Edith Windsor filed a lawsuit against the federal government seeking reimbursement of $350,000 in estate taxes that she paid as the result of the death of her partner of 41 years, Thea Spyer. The New York residents were married in Canada in 2007, but Ms. Windsor had to pay the estate tax bill since U.S. federal law does not legally recognize same sex marriages due to a 1996 law called the Defense of Marriage Act ("DOMA"), which only recognizes marriages between one man and one woman. (Had Windsor and Spyer been considered legally married under U.S. federal law, then no estate taxes would have been owed due to the unlimited marital deduction.)

After initiating the lawsuit in the Southern District of New York, Ms. Windsor's attorneys filed a motion for summary judgment, and on August 19 the U.S. Department of Justice ("DOJ") filed a brief in support of the motion in which assistant Attorney General Tony West and DOJ senior trial counsel Jean Lin stated: "Section 3 of DOMA fails the heightened scrutiny, and this Court should ... grant Plaintiff's motion for summary judgment." What does this mean in plain English? That DOJ believes DOMA is unconstitutional and therefore Ms. Windsor should be entitled to a full refund of $350,000.

On the other side, the Bipartisan Legal Advisory Group ("BLAG"), comprised of leaders in the U.S. House, has taken steps in the case to defend DOMA and has filed a motion to dismiss the lawsuit. BLAG has until September 2 to respond to DOJ's brief.

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