DOMA-avatar DOMA: Perry Doesn’t Address State Law Concerns

As discussed in previous posts by this blog and numerous other commentators, the landmark Supreme Court case United States v. Windsor resulted in the Defense of Marriage Act (commonly abbreviated as “DOMA”) being ruled unconstitutional, causing same-sex married couples to be federally recognized.

What many people do not know is that another case, Hollingsworth v. Perry, was not decided by the Court due to procedural reasons. The Perry case could have had the same effect on state law as Windsor had on federal law—invalidating state laws that did not recognize same-sex marriages. The Court’s refusal to rule on the merits of Perry allows state courts to have the ultimate decision about whether state laws that ban or fail to acknowledge same-sex marriage are constitutional. Because the states have no federal precedent to obey, considerable uncertainty exists about how same-sex couples are treated within individual borders.

The lack of uniformity means that despite being recognized for federal purposes, a same-sex married couple can be disregarded within a state depending on local law. This is a highly variable situation, as Paul Ferrara, Senior VP of Wealth Management at US Trust, aptly describes in the following scenario:

“Imagine a same-sex married couple travels by train from Boston to Washington, DC. The train made stops in Providence, New Haven, New York, Newark, NJ, Philadelphia, Wilmington, Baltimore and then Washington. If the couple disembarked the train in Providence, New Haven, New York, Baltimore and then Washington, their marriage would be recognized. However, if they disembarked in Newark, Philadelphia or Wilmington, the marriage would not be recognized. The marriage recognition would literally depend where the train tracks took them.”

For same-sex couples thinking about Estate Planning, situations such as the hypothetical train ride above means that they need to consult an attorney who is familiar with their state’s (and in some cases, states that couples are likely to travel to) laws regarding marriage recognition. Even careful planning can be completely undone if it relies on a same-sex marriage in a state that does not recognize it.