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Rulings Trigger Rash of Questions for Family Law Specialists
2013-06-26 06:13:55 PM
SAN FRANCISCO — For family law attorneys who work with same-sex couples, there wasn't much time to celebrate the U.S. Supreme Court's two marriage rulings Wednesday. "My computer's exploding," said Deborah Wald of San Francisco's Wald & Thorndal. Within two hours of the decision, more than 100 messages had landed on the Listservs of Frederick Hertz, author of a legal guide to same-sex marriage.
Family lawyers will have to figure out how federal law now treats "marriage equivalents" like California's domestic partners, Hertz said. California couples who were legally married in 2008 also could have retroactive claims for federal benefits, including different tax treatment..
"In general, when a statute is ruled unconstitutional, that means it's unconstitutional from the outset," Hertz said. So those couples may have a retroactive claim, subject to the IRS's three-year statute of limitations.
Hertz said Wednesday's two Supreme Court decisions could be a boon for California, since couples living here would be exempt from federal estate taxes. "Wealthy gay and lesbian couples that want to leave their estates to their spouse tax-free should move to a recognition state," he said. "If you want to be a test case, then stay where you are."
U.S. Court of Appeals for the Ninth Circuit attorney Karen Golinski, whose case over denied spousal benefits is holding behind Windsor, said she was grateful that the Supreme Court reached the merits of the Defense of Marriage Act issue. The Bipartisan Legal Advisory Group of the House of Representatives had argued she didn't have standing because the Obama administration dropped its appeal. "I thought the language was very powerful," she said of Kennedy's opinion. "They're recognizing this isn't an abstract issue. This is nuts and bolts."
Hertz said he considers federal recognition the second major milestone in the advancement of same-sex marriage rights, the first being the Massachusetts Supreme Court's recognition of the right in 2003. "I hope they will be happy to have gotten what they wished for," quipped Hertz, who counsels couples through marriage and divorce.
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