In a blog that I wrote last December, I commented on a U.S. constitutional challenge that had 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, a New York resident, was the survivor of a same sex Canadian marriage that was not recognized by U.S. federal law because of the operation of a statute known as the Defense of Marriage Act, which restricts the definition of marriage for federal law purposes to the legal union between one man and one woman.
Because Edith and her spouse, Thea, were not considered to be legally married for the purposes of U.S. federal law, on Thea’s death, the estate tax marital deduction was denied by the IRS, resulting in an additional $350,000 in federal estate tax.
Since my blog in December, Edith’s constitutional challenge has moved along, its potential for success seeming to increase by the announcement of the Obama administration in February that it would no longer defend the constitutionality of the Defense of Marriage Act.
However, as noted in a recent article about Edith’s constitutional challenge, Republicans in the House of Representatives have determined that the Defense of Marriage Act should be defended by congressional lawyers and the House Speaker has announced the appointment of Paul D. Clement, the former solicitor general for President George W. Bush, to fulfill this role. Clement and his associates have recently filed motion materials intervening in Edith’s constitutional challenge for the purpose of defending the constitutionality of the Defense of Marriage Act.
Edith’s challenge of the U.S. estate taxes imposed as a result of her spouse’s death has invited much political and legal discussion in the United States and I hope to keep readers of this blog informed of new developments as they occur.