Some married lesbian and gay couples are considering filing protective claims this year because of the pending U.S. Supreme Court cases in Windsor v. United States and Hollingsworth v. Perry.
These couples are filing amended federal tax returns listing themselves as "married and filing jointly". The Internal Revenue Code allows protective claims and the returns will be put on hold pending the outcome of, in this case, the Supreme Court's decision in those two cases.
The Defense of Marriage Act (DOMA) prohibits the feds from recognizing same-sex marriages. This means lesbian and gay married couples cannot file as married on their tax returns. They must file as "single". However, since they are legally married there is a concern about the "under penalty of perjury" provision when they sign their returns. It's a conundrum for them--they aren't single, except where the feds are concerned because of DOMA.
This is where the protective claims come into play. Look at IRS Pub 556 for additional information on how to file and talk to your tax preparer. There is a 3-year look back period for filing an amended return. You'll be able to go back to tax year 2009.
Protective claims are often based on pending court cases, like Windsor. It may be worthwhile to checkin into whether you are eligible to file a protective claim and whether it will do you any good. In some cases, a married lesbian/gay couple may be entitled to a refund.
Lots happening on the LGBT front. The U.S. Supreme Court will hear oral arguments on March 26 and March 27 in the Windsor v. United States and the Hollingsworth v. Perry cases.
Windsor deals with Edith Windsor's claim that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. She won at trial and in the 2nd Circuit Court of Appeals. Edith and her late spouse, Thea Spyer, were married in Canada (see my earlier post).
After Thea died Edith owed over $320,000 in federal estate tax. Had their marriage been recognized by the federal government the amount owed would have been $0--just like any other married couple. DOMA prohibits the federal government from recognizing same-sex marriages--even when the marriages are recognized in the taxpayer's state of residence.
So, the Supreme Court will consider the appeal. No one is sure what will happen or what the vote will be, but the next few months will be an interesting and tense time.
One big issue is whether the court will declare section 3 of DOMA unconstitutional across the board and require the feds to recognize same-sex marriages in every state; even those that prohibit recognition. And, what impact it will have on couples living in Civil Union and Domestic Partnership states.
The Hollingsworth case comes out of California and deals with Proposition 8, the 2008 California ballot initiative that prohibited same-sex marriage. The 9th Circuit decision was written with Justice Kennedy in mind and is narrowly drawn.
One issue that may preclude any definitive decision is if the court decides neither the Prop 8 proponents appealing in Hollingsworth or the U.S. Housing of Representatives appealing in Windsor have the right to appeal. The Court could dismiss both appeals without addressing the merits. It would be tantamount to a judicial kicking the can down the road. Stay tuned.
It's been awhile since I last posted anything. The past 8 months have been complicated. I have been caring for my parents--both 88--and, until last August, both in good health. Something had to give and I'm afraid it was this website and regular updates. My Dad died February 27 and Mom is dealing with the loss of the man she spent the past 66 years with. It continues to be a difficult time.
I thought about adding a photo, but there is no way I want Mitt on this site. A new article in the LGBT newspaper, Boston Spirit, provides an insight into the Republican nominee--and it is not favorable. Apparently, his parents never taught him the basics of courtesy and fairness. The article, "Romney, A Wimp? Not so much, say gays who engaged with him as governor",( http://bo.st/P8RKrl )
The article is difficult to read since there is a possibility that Romney may become president. That would be a disaster for the U.S.. The video that Mother Jones released shows the real Romney. And, the 47% he talks about--the ones that he is writing off--could it be he believes they are all people of color? That those 47% are not like him so they do not count?
The guy is an arrogant automaton--and I don't care what his wife says about him. The only people Romney will concern himself with are those that are "like them."
BTW, Romney doesn't pay income tax either--all of his money comes from investments. Income tax is only paid on "earned income". Wonder if he realizes that he's part of that 47% that he despises. I think he should have the "privilege" of paying income taxes...but not from the income paid to the President of the United States.
An interview with Joan Burda at the American Bar Association Meeting 8/2012
The Defense of Marriage Act has been ruled unconstitutional by two federal courts, but LGBT marriages have yet to receive federal recognition and the rights and protections that come with it. One area in which this impacts same-sex couples is estate planning and inheritance.
An Ohio Common Pleas court judge issued a ruling that protects the parental rights of a non-biological parent. Rowell v. Smith, Case No. 08JU-10-13850, Franklin County, Ohio Common Pleas Court, Juvenile Branch (August 27, 2012).
Julie Rowell and Julie Smith were in a committed lesbian relationship during which Smith gave birth to Maddie. When the couple ended their relationship, Smith decided Rowell was not entitled to any further contact with the child.
Rowell filed a petition for joint custody and Smith fought it tooth and nail. On August 27, 2012, Judge Elizabeth Gill adopted the Magistrate's decision.
Contrary to the assurances given by Log Cabin Republicans, the GOP has tapped Tony Perkins, President of the Family Research Council, to write the language for the party's platform statement on marriage equality. Talk about the fox and the hen.
Perkins is known for being rabidly opposed to marriage equality. He is an avid supporter of a federal constitutional amendment banning marriage equality. He also wants the amendment to repeal all rights given to lesbian and gay couples who are now legally married.
I do not understand why these folks are so opposed to marriage equality. They tout the benefits of marriage yet believe that straight people will stop getting married if lesbians and gay men are allowed to marry. That makes absolutely no sense. Yet, they make the statement with a straight face.
On August 9, 2012, the Ohio 10th District Court of Appeals issued a decision in a custody case. The case involved a little girl, M.E.G., her biological mother (J.L.H.) and her mother's former partner (J.L.G.) The women were involved in a long-term relationship during which M.E.G. was born. The case is State of Ohio ex rel. M.L.G. v. Robert G. Montgomery, et. al., No. 12AP-13, in the 10th District Court of Appeals.
The couple never formalized their understanding concerning the child's custody. They did not sign a Joint Custody Agreement. While they formalized their personal relationship with a "holy union" in 1999, they neglected to formalize the relationship with the child.
Like In re Mullen, decided by the Ohio Supreme Court in 2011, this decision also denies the non-biological mother any rights to continue her relationship with the daughter she's helped raise since birth.
Earlier this week a probate judge in Hennepin County, Minnesota issued a ruling that Minnesota's ban on same-sex marriage does not apply to inheritance rights.
Thomas Proehl and James Morrison were married in San Francisco in 2008. Thomas died suddenly in 2011. He did not have a will. He did have a bank account, in his name only, that contained the proceeds from the sale of the couple's home in California. The men intended to put James' name on the account, but never got around to it.
Tom Proehl also planned to name his spouse, Jim, as the beneficiary of his life insurance. But, he didn't get it done before his death.
Without a will, Tom's estate became a probate asset. Under Minnesota law, Jim is not recognized as a legal descendant. He has no rights to inherit under Minnesota law.
On Friday, August 3, I spoke at the American Bar Association Annual meeting in Chicago on LGBT issues. This was in conjunction with the release of the second edition of my estate planning book, Estate Planning for Same-Sex Couples, that the ABA publishes.
My law practice is concentrated in estate planning and business consulting. Most of my estate planning clients are lesbians and gay men. Most are in a committed relationship. An increasing number are raising children.
First, let's get some things, ahem, straight. You don't need children to be a family. Most lesbian and gay couples are not raising children. Most gay and lesbian couples live in non-recognition states. Those are the ones that do not recognize lesbian and gay relationships. And, most lesbian and gay couples have not done any estate planning. That is a mistake.
I thought a primer on estate planning might be helpful:
Joan M. Burda is a lawyer with a solo practice in Lakewood, Ohio. She limits her practice to estate planning and small business law. She is nationally recognized for her work in addressing legal issues affecting the LGBT community.
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