(Photo by Ted Eytan / Flickr)
New York City Pride has concluded. Although many of the rainbow banners and decorations have been removed from storefronts and apartment terraces, the celebration’s energy continues throughout the city’s downtown neighborhoods. This year’s Pride was especially festive as it celebrated the 50th anniversary of the Stonewall riots. A precursor to Pride, one month after the Stonewall riots in 1969, a “Gay Power” demonstration was held in Washington Square Park. In 1970, Christopher Street Liberation Day commemorated the one-year anniversary of Stonewall.
Since the Stonewall riots, gay rights, like Pride, have grown. Perhaps the greatest advancement has been United States v. Windsor, a landmark United States Supreme Court case which held that the Defense of Marriage Act (DOMA) in its denial of the recognition of same-sex marriage, was a violation of due process. “Love Wins!” was the popular message that emerged from Windsor. I imagine that most do not realize that Windsor involved a trusts and estates issue, as it applied to a married, same-sex couple. During Pride, I often reflect on the case and how an issue as mundane as estate tax could spark something as powerful as Windsor and its aftermath.
Edith Windsor and Thea Spyer married in Canada in 2007 after a decades-long relationship. Their home state of New York recognized the marriage. When Spyer died, in 2009, Windsor could not claim a marital deduction for estate tax, a deduction that was available for a heterosexual married couple. As a result, Windsor had to pay estate tax when Spyer died. In 2010, Windsor sued the federal government. The lawsuit sought to have DOMA declared unconstitutional and also to refund Spyer’s estate’s paid tax in the amount of $350,000. In a majority decision, Justice Anthony Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, held that DOMA was “a deprivation of the liberty of the person protected by the Fifth Amendment.”
Trusts and estates issues arise during the most difficult times in people’s lives. While mourning the loss of her spouse, Windsor was denied recognition of the relationship by something as stoic and ministerial as the IRS and its treatment of an estate tax deduction. In the past, same-sex couples suffered even worse inequities including inheritance laws that excluded same-sex spouses and partners. Couples who spent their lives together for decades were denied standing as next-of-kin in courts and unable to receive inheritances. Same-sex couples could not gift freely between each other without incurring tax, unlike heterosexual couples. Same-sex spouses were denied decision-making authority in end-of-life situations. Adoption by same-sex couples was difficult if not impossible.
Many of the aforesaid issues were dealt with by establishing a last will and testament and advanced directives. A proper estate plan will ensure your assets are distributed to whom you want, when, and how you want. Decisions will be made by your nominee and not whom the law dictates to be your decision maker. This is foundational to the practice of trusts and estates. The best way to ensure how to dispose of your assets is to express your wishes in a last will and testament, regardless of whether you are married or single. Similarly, a health care proxy is necessary to appoint an individual whom you choose to make medical decisions. Asserting one’s wishes in a last will and testament and health care directive guard not only against statutes, but also family members who may not be supportive or accepting of your life choices.
Pride, through the context of Windsor, provides several lessons. Although “Love Wins!” is the popular takeaway, we are also reminded that through family composition, relationship, and asset level, it is incumbent upon each of us to take care of our estate plan and further to be protected and treated equally by the law.
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.