Further to my colleague Corina Weigl’s discussion of U.S. estate taxes, I thought readers might be interested in a U.S. constitutional litigation that has been launched in response to the U.S. estate tax burden borne by the survivor of a same-sex marriage.

The plaintiff in the action, Edith Windsor, and her partner of over forty years, Thea Spyer, both New York residents, were engaged in 1967 but did not legally marry until 2007 in Toronto.  Thea died in 2009.

Edith and Thea’s Canadian marriage was recognized by New York state law for a variety of purposes, but Edie and Thea were not considered “married” under U.S. federal law because of the operation of a statute known as the Defense of Marriage Act. 

The Defense of Marriage Act provides that for the purposes of U.S. federal law, marriage is restricted to a legal union between one man and one woman as husband and wife.

Pursuant to the provisions of the Defense of Marriage Act, Edith and Thea were not considered to be legally married for the purposes of U.S. federal law.  As a result, on Thea’s death, the estate tax marital deduction, which is available to all lawfully married couples, was denied by the IRS.  This denial of the estate tax marital deduction resulted in an additional $350,000 in federal estate tax becoming payable as a result of Thea’s death.

Edith is now challenging, on constitutional grounds, this unequal result.  It will be interesting to see how Edith’s constitutional challenge is treated by the U.S. courts as the litigation moves forward.

Thanks,

Laura West