The U.S. Supreme Court has agreed to consider, among other questions, if the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection as applied to same sex couples who are legally married under state law. The Court will review a federal estate tax case, Windsor, CA-2, 2012-2 USTC in which the Second Circuit Court of Appeals held that a surviving same-sex spouse was entitled to the estate tax marital deduction. The Second Circuit covers New York, Connecticut, and Vermont.


On December 7, 2012, the Supreme Court announced that it would review the Second Circuit’s decision in Windsor. Oral arguments are expected to be held in early 2013 on:

  • Whether Section 3 of 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;
  • Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives the Supreme Court of jurisdiction to decide this case; and
  • Whether the Bipartisan Legal Advisory Group has Article III standing in the case.

MHCo Observation 

If the Supreme Court strikes down DOMA, it could open the opportunity for same-sex married couples to file amended estate returns, possibly for a three-year period.