On behalf of Thomas Costello of Costello Law Group 

Although voters in Maryland and other states approved a referendum legalizing same-sex marriage last November, same sex couples’ future ability to take advantage of the marital deduction under Federal estate tax law is unclear.

In Windsor v. United States, the surviving spouse in a same-sex marriage brought a claim against the United States for a refund for the federal estate tax paid as a result of the IRS’ disallowance of the marital deduction. The IRS denied the marital deduction on the basis that the couples’ union did not meet the definition of “marriage” under Section 3 of the Defense of Marriage Act (DOMA).

The Court of Appeals for the Second Circuit held that Section 3 of the DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State. The U.S. Supreme Court granted certiorari to review the Second Circuit’s decision and is expected to hear oral argument in the case on March 27, 2013.