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Swimming in the Wake of Windsor
When the United States Supreme Court announced its pair of same-sex marriage decisions on June 26, 2013 (Perry v. Hollingsworth and United States v. Windsor), commentators began to forecast the tsunami of tangible changes that would result. And as predicted, one of the most prominent impacts has been the effect on employment law benefits and statutes, and the expanded field of those who can now access them.
In sum, Edith Windsor sought a refund of federal estate taxes, which she had been required to pay following the death of her wife. Ms. Windsor had married her same-sex spouse in Canada and the couple resided in New York, which recognized the marriage. However, under the federal Defense of Marriage Act (DOMA), Ms. Windsor did not qualify as a “surviving spouse” and she was required to pay estate taxes.'
Practitioners will recall that the Windsor court invalidated Section 3 of DOMA, which had prohibited the federal government from acknowledging same-sex marriages and spouses even where those marriages had been solemnized in states that recognized them as legal and valid. But the Court did not invalidate Section 2 of DOMA, and thus it did not require states to recognize same-sex marriage. The question that immediately followed that decision centered on what rights same-sex spouses have regarding their spousal employment benefits, estates, and family leave requirements. Answers are beginning to roll in as noted below.
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