LGBT News - Qualified Retirement Plans Post Windsor

The IRS has release long awaited guidance to administrators to qualified retirement plans. See Notice 2014-19 .  All qualified retirement plans  in states where same sex marriage is recognized is must recognize that marriage for retirement plan purposes no later than June 26, 2014, the date of the Windsor decision.  As of September 16, 2013, all plans must recognize valid same-sex marriages regardless of whether the participant’s state of domicile recognizes the marriage. The September 16 date is when the IRS released a ruling stating that spouse, husband, wife, and marriage for purposes of the Internal Revenue Code have to be interpreted to include same sex marriages.  See  Rev. Rul. 2013-17.  Given the Obama administration's unwillingness to extend itself on same sex marriage during his first term, the pace of change in the second term is breath taking. 

Same Sex Parent Adoption Post DOMA

Will same sex married couples in Massachusetts still need to file an adoption petition even though both parents are on the original birth certificate?  How risk adverse are the parents?  The Supreme Court today did not strike down Section 2 of DOMA, which  allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 28 U. S. C. §1738C.  Therefore, if you are named in your child's birth certificate because you were married in Massachusetts at the time of birth, there is still no prohibition against other states determining that since your parentage was based on a marriage status that it does not recognize,  it will not recognize your status as a parent. Or, what if you divorce and the biological parent moves to a state that does not recognize same sex marriage and tries to revoke the rights of the non-biological parent.  Remote?  Sure it is.  We will see how this plays out.  Co-parents contemplating travel or a move to a state that does not recognize gay marriage - beware!  Call Glickman Turley at 617.399.7770 for more information or to start your co-parent adoption petition.

The Irony of DOMA

In the majority opinion striking down the defense of marriage act,, the court debated whether the issue was properly before the court given that the Attorney General refused to defend DOMA in court.  The House of Representatives had formed a group called the Bipartisan Legal Advocacy Group (BLAG) to vigorously defend the constitutionality of the law and appear in place of the attorney general before the court.  The court stated that had BLAG not come forward to defend the law, thereby providing a substantial adversarial argument for a finding of constitutionality, the court might have declined to review the lower court decision. Ironically, the arguments by the very group that sought to prevent the court from finding DOMA unconstitutional, gave the court a hand up in finding DOMA unconstitutional.

Today the court declared: "DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State."

The Supreme Court has told the federal government it cannot discriminate.  It is time for the remaining states which prohibit gay marriage to end discrimination.  These states will rise, one by one.

For same sex couples, the implications are enormous.  It will impact estate planning, real estate, probate, inheritance rights, criminal matters, immigration issues, social security, and hundreds, if not thousands of federal laws which provide special considerations to married couples.  If you would like us to investigate how it will make a difference in your case, please call Glickman Turley at 617.399.7770.

The DOMA decision can be found here:  UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL., No. 12–307.