DOMA Hits LGBT Couples Even After Death



Edie Windsor, 83, is suing the federal government for estate taxes she was forced to pay for being in a federally unrecognized marriage. Photo: Morgan M. Davis.

With her quiet voice, blond bob and impeccable suits, 83-year-old Edie Windsor has emerged as an unlikely rebel against the Defense of Marriage Act (DOMA), a 1996 federal law defining marriage as the union of “one man and one woman.” Windsor, a lesbian who in 2009 survived her wife and partner of more than 40 years, Thea Spyer, is suing the federal government over what she argues are the unconstitutional estate taxes she was forced to pay. Windsor’s case is expected to be determined by the U.S. Supreme Court soon, as  the 2nd U.S. Circuit Court of Appeals confirmed a lower court’s June ruling on October 18 that DOMA is unconstitutional.

“If we win in the Supreme Court … I think it will be the beginning of … an endless list,” said Windsor outside of the Second Circuit Court of Appeals in New York City in September. She listed examples of how the lives of lesbian, gay, bisexual and transgender (LGBT) citizens could be changed, including greater acceptance for bullied teens and political equality for all citizens, by a U.S. Supreme Court decision on the constitutionality of DOMA.

Windsor’s lawsuit, demanding a refund of the more than $300,000 in extra estate taxes, is just one of the problems same-sex couples face because of DOMA, even if they are in a legally recognized marriage. Windsor and Spyer’s 2007 Canadian marriage was recognized as legal in New York, although same-sex marriages in the state were not legalized until 2011.

While gay couples nationwide are opposed to DOMA, gay seniors face specific problems due to lower income and end-of-life issues like wills and estates. The Services and Advocacy for Gay, Lesbian, Bisexual, and Transgender Elders (SAGE) Center in Chelsea filed a friend of the court brief in September in support of Windsor, a former SAGE board member. “This case falls in line with our mission to improve the lives of LGBT older adults,” said Judy Evans, SAGE director of marketing and media relations.

While couples legally married in a state that recognizes same-sex marriages will be protected for state purposes, on the federal level they will be treated merely as roommates. Right now, six states, plus Washington, D.C., have legalized same-sex marriage, and three others explicitly recognize same-sex marriages from other states. This can lead to a slew of complications, from denial of Social Security and survivor benefits, to lack of access to a hospitalized spouse, to additional federal estate taxes. For seniors on a fixed income, these effects can be a huge blow.

“Because of DOMA they’re not going to be treated as a spouse,” said Thomas Sciacca, a private practice estate lawyer who has been volunteering with SAGE for the last seven years. “In a city like New York, that can be crippling.”

Many older New Yorkers, Sciacca said, purchased apartments in Manhattan decades ago that have now increased in value exponentially. Because of such property, Sciacca continued, it’s not uncommon for elder New Yorkers to have estates worth more than $1 million, all of which will be subject to the federal estate tax for non-spousal beneficiaries. “These people are millionaires on paper but not in reality,” Sciacca said. “It’s a really hefty tax … and that’s discriminatory.”

Ann Meitzen and Joanne Pedersen, a married Connecticut couple, are also suing the federal government because of the health care benefits Meitzen was denied under DOMA. Pedersen, a retired federal employee, cannot include Meitzen on her health insurance because of the federal standards. Meitzen, who suffers from chronic illnesses, is forced to pay out of pocket for her medical treatments. “Without Joanne’s income I could not survive,” said Meitzen.

“It’s important for us to get this. We want some of the things my brother and sister have with their spouses,” Pedersen added.

Daniel Castillo has been with his partner Brendan for 10 years. While the couple isn’t married yet, they have discussed it. But, Castillo, 53, is skeptical of the benefits a legal marriage would provide them. “I would love for [marriage equality] to be cemented,” he said. “I just don’t trust these laws.” He pointed out that San Francisco legalized same-sex marriages in 2008, only to pass Proposition 8, ending the legalization, less than five months later.

Castillo, a New York waiter, is able to benefit from his partner’s health insurance, but otherwise simple tasks, like obtaining an extra ATM card for their joint bank account, have been complicated by their lack of marital status. Castillo has seen friends in same-sex relationships suffer when a partner dies. “If [Brendan] died, his family could come in and take everything,” said Castillo. While getting married in New York would protect him against that, he fears that as long as DOMA exists, his security is threatened. “It has nothing to do with the defense of marriage at all,” Castillo said, calling DOMA a “scare factor” to gain votes. The law is keeping him a “second class citizen,” he said.

While same-sex couples may settle for only benefiting from state level protection in New York, they lose the protection should they chose to move, Sciacca said. “I have a lot of clients … who would like to retire to Florida,” he said, explaining that Florida has a constitutional amendment banning same-sex unions. “They can be a couple here and be recognized as spouses here, but when this couple goes south if they become Florida [residents] … they are going to lose the recognition of their marriage,” he said.

Because the status of same-sex marriages is in constant flux between states and the federal government, couples must know their rights and protect themselves, said Brian Moulton, the legal director of the Human Rights Campaign, an LGBT civil rights organization.

“There’s no way to get around all the inequities DOMA creates,” he said. Just like with straight couples, “the most important thing is to make sure the partners have wills,” he added. “It is very important to speak with a professional that is familiar with the unique issues facing same sex couples.”

Moulton and Sciacca both stressed the importance of education for same-sex couples. Being aware of their status in their home state or a state they’re considering moving to will allow them to better prepare for the future.

“The marriage equality in New York State is fantastic,” said Sciacca. But, “as long as we have DOMA we are not going to have equal rights for the LGBT Community.”