DOMA Ruling Creates “Modern Family” Dilemma

June 27, 2013

Note: This article was updated on Monday, July 1, 2013 at 9:00 a.m.

For same-sex couples like Cameron and Mitchell from ABC’s television show “Modern Family,” the U.S. Supreme Court’s historic ruling on June 26, 2013, in United States v. Windsor 1, creates more questions than answers. The Court struck down the portion of the Defense of Marriage Act (DOMA) that defines marriage as between one man and one woman, which leaves the legal status of same-sex marriage in the hands of the states.

Currently, 13 states and the District of Columbia recognize same-sex marriage. Wisconsin, and the majority of other states, do not recognize same-sex marriages, even those performed validly in other states.

This creates uncertainty for the 1,138 federal lawsthat use marital status to define eligibility. Let’s assume that Cameron and Mitchell decide to legally marry in California, a state which recognizes same-sex marriages. While living in California, they would presumably be entitled to any state or federal benefits afforded to spouses. However, what happens if Cameron and Mitchell move to Wisconsin? It is clear that Wisconsin does not recognize same-sex marriage, so they would not be considered a married couple for purposes of receiving state spousal benefits. What remains unclear from the Court ruling is whether Cameron and Mitchell would be considered spouses for purposes of receiving federal benefits while living in Wisconsin. Does their entitlement to federal benefits change as they cross state lines?

The answer depends on which state laws each federal agency utilizes in defining marital status. Unfortunately, this varies greatly among federal laws and programs. Some agencies, such as the Department of Veterans’ Affairs, refer to the state of marriage3. Other programs, such as Social Security, refer to the state of residence4. Some benefits, such as federal employee retirement/survivors benefits (FERS, CSRS) make a case-by-case determination based on “the jurisdiction with the most significant interest in the marital status of the employee…or retiree.” 5 Meanwhile other federal laws, such as the Tax and Bankruptcy Codes, do not specifically define marital status either way, leaving this question unanswered.

Nevertheless, the DOMA ruling undeniably has far-reaching effects. Employers should act quickly to review retirement and health plans to ensure compliance with the new federal scheme. Married same-sex couples should review their estate plans and tax filings. Military spouses should review their benefits package to take advantage of the newly available benefits. Federal employees may want to reconsider impending relocations across state lines.

Fortunately for Cameron and Mitchell, Mitchell’s legal expertise will come in handy as they wade through this quagmire.

Contact an Axley attorney today to discuss how these recent changes might affect you.

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1 570 U.S. ______ (2013).
2 U.S. General Accounting Office, Defense of Marriage Act: Update to Prior Report, GAO-04-353R (Washington, D.C.: January 23, 2004).
3 8 U.S.C. § 103(c).
4 2 U.S.C. § 416(h)(1)(A); 42 U.S.C. § 1382c(d)(2).
5 C.F.R. § 843.102; 5 C.F.R. § 831.603.

For more information about "DOMA Ruling Creates “Modern Family” Dilemma," contact Kathryn M. Grigg at kgrigg@axley.com or 608.283.6703.