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There are three issues that were raised by the challenge to the Defense of Marriage Act (“DOMA”). One issue was whether or not Congress overstepped its authority by infringing on a matter that is traditionally left to the states. Historically, states have had authority to regulate marriage and issues relating to the family. However, Section 3 of DOMA defined marriage, albeit in the name of allowing states to determine their own definitions of marriage. Another issue was what level of scrutiny should be applied to government regulations that are based on a person’s sexual orientation. The final issue was whether or not DOMA impermissibly discriminated against a class of people in violation of the Fifth Amendment.
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The Case
The Supreme Court of the United States recently overturned the Defense of Marriage Act when it found the act to be unconstitutional in United States v. Windsor. The following provides the background of that historic and monumental decision.

In 1996, after Hawaii state court seemed likely to permit same-sex marriage, The House of Representatives felt it necessary to “defend the institution of traditional heterosexual marriage” in light of “the orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers.” H.R. Report 104-664 “Defense of Marriage Act,” 104th Congress. The result was the Defense of Marriage Act (“DOMA”). Section 2 of the Act established that states were not required to give effect to same sex relationships treated as marriage in other states, and Section 3 defined marriage as “only a legal union between one man and one woman as husband and wife.” DOMA was applied not only at the state level, but also the federal level. The result was that same-sex spouses could not benefit from over 1,100 federal benefits, even if they were legally married under state laws. One of the federal benefits that was denied to same-sex couples was the spousal estate tax exemption.
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Same-sex marriage has been a hotly debated topic lately, especially because the United States Supreme Court recently ruled on the subject in two separate cases. Because same-sex marriage is not allowed in a majority of states or under federal law, same-sex couples were until recently deprived of many of the privileges and benefits that married couples receive. One area in which same-sex couples who are unable to marry were disadvantaged is taxes.
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Floridians are unable to contest the validity of a will before the testator’s death. See Fla. Stat. § 732.518. There are several good reasons for this rule, and a majority of states prohibit such litigation. The primary reason for not allowing pre-death will contests is that a will is revocable-the litigation could become meaningless if the testator changes how he or she wants to dispose of the property after death, and the cost of legal fees and judicial resources would be wasted. Another reason for prohibiting such litigation is that many testators keep their wills confidential before their death. Four states have expressly allowed pre-death will contests (Alaska, Arkansas, North Dakota, and Ohio), and three of those states require the testator to name all beneficiaries named in the will in the suit. While such a requirement is logical in that it binds all of the beneficiaries to the judgment, it also forces the testator to reveal who is, and who is not, named in the will. Finally, if a beneficiary named in the will knows that there may be a reason that the will is invalid, such as a lack of mental capacity on the part of the testator, he or she may not raise that issue in a declaratory action in order to protect the inheritance.
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Estate planning for married couples offers many advantages. Married couples are able to file a joint Federal Income Tax return which can lead to an overall savings. There is also a Federal Estate and Gift Tax marital deduction for passing property to a surviving spouse. This deduction allows the transfer taxation to be deferred until the surviving spouse passes the property – either during life or through a testamentary transfer. A surviving spouse can also use the remainder of a deceased spouse’s allowable exclusion (which is $5.25 million per person as of January, 2013). There is also a spousal rollover option for individual retirement accounts that allows a surviving spouse to treat the deceased spouse’s IRA account as his or her own. Without this, the IRA becomes payable over the life expectancy of the oldest beneficiary of the account. Married couples can also own real property as a tenancy by the entireties. This is a joint form of ownership that has a right of survivorship. There is also an elective share available to the surviving spouse and entitlement to social security benefits.
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On February 26, 2013, Lorraine Bayless collapsed in the dining room of Glenwood Gardens, the independent living facility in California where she resided. The staff refused to perform CPR on Ms. Bayless, despite pleas from the 911 operator. As the 911 operator predicted would happen when a nurse on duty refused to administer CPR because it was against the policies of Glenwood Gardens, Ms. Bayless died before the ambulance arrived. The facility’s policy is that in the event of a health emergency, the facility will immediately call for emergency medical personnel for assistance and wait for the assistance to arrive. Fortunately for the independent living facility, Ms. Bayless had signed a Do Not Resuscitate form, and the family does not wish to pursue any potential claims that they might have against the facility. The family has said that it knew the policy of Glenwood Gardens and is at peace.
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Probating a will can be an expensive process when the procedure involves contentious matters, such as will contests, determination of beneficiaries, etc. However, who bears the potentially great cost of such litigation? Does the estate have to pay? Is the estate always responsible for paying the attorney’s fees? Who decides from which part of the estate the fees and costs will be paid?
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When someone passes away and there is probate property, there is always the possibility of a lawsuit. When beneficiaries do not agree on the distribution of the decedent’s property, litigation ensues. Probate disputes are inherently unique: they are wrapped in a shroud of emotion; the issues are complex; the parties are stubborn; and lawyers’ creativity is often put to the test. Given the nature of probate disputes, another means of dispute resolution often proves to be a more efficient method of resolving probate cases. This is where Alternative Dispute Resolution comes in. Alternative Dispute Resolution is a means of resolving a claim outside of the court, usually through arbitration or mediation. It is a beneficial option to pursue before entering into litigation.

The benefits of litigation are that it gives a clear definition of the issues. The court and the parties know exactly what they are asking for and the grounds on which they seek relief. The rules of civil procedure give the parties the right to full discovery of the necessary facts of the case. Litigation also excludes irrelevant or frivolous issues. The decisions of the court are also final and binding. However, litigation can be time consuming, expensive, and onerous for everyone involved. It can also take years for a case to be completely resolved.
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All states have their own constitutions and state laws. Because of this, states may have different provisions for how people are allowed to pass on their property at death. It is important to be aware of the laws of the state where you live, and also any states where you own property. Many non-Floridians purchase property in Florida and later retire and move to that property. However, those people may have done their estate plans in other states and not updated them after moving. This can create problems if the estate plan is not in compliance with Florida laws.
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The IRS released a 1.2% interest rate under IRC § 7520 for June, which determines the present value of an annuity, an interest for life or term of years, or a remainder or reversionary interest. Rev. Rul. 2013-12 tbl. 5. With interests rates at an all-time low, charitable donors are able to bequest their assets to their beneficiaries without having to worry about federal estate or generation transfer taxes by using a charitable lead trust.

Charitable lead trusts should be used to enhance charitable giving, reduce current gift taxes and estate taxes owed at death, and to transfer assets to a younger generation as part of an overall estate plan. Charitable lead trusts pay an income interest to a charity for a specified period of time with the remainder reverting to a non-charitable beneficiary. Donors who already make annual charitable gifts will find a charitable lead trust an efficient way to transfer substantial assets to family members while maintaining the donor’s regular charitable gifts.
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