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The Federal Defense of Marriage Act and Pennsylvania

The U.S. Supreme Court struck down a key provision of the Federal Defense of Marriage Act ("DOMA"). What's that mean for Pennsylvanians?


In United States v. Windsor, the U.S. Supreme struck down section 3 of DOMA that denied all federal benefits of marriage to a same-sex couple as a deprivation of equal liberty for all people protected by the 5th Amendment. Windsor, a woman, was lawfully married in the state of New York to another woman. New York recognized their marriage in 2008. However, the federal government did not. When Windsor's wife passed she had to pay federal estate tax as though she was not a spouse. The Supreme Court ruled that marriage cannot narrowly be defined, in that instance, as solely between a man and a woman. This ruling does not decide the overall constitutionality of same-sex marriage.

What About Pennsylvania?

Pennsylvania has it's own DOMA, Act 124 of 1996; 23 Pa.C.S. Sections 1102 and 1704. Section 1102 defines "marriage" as "a civil contract by which one man and one woman take each other for husband and wife."

Section 1704, however, takes this further and mandates that marriages of same-sex couples in other states not be recognized:

It is hereby declared to be the strong and longstanding policy of this Commonwealth that marriage shall be between on man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if avid where entered into, shall be void in this Commonwealth.

A State of Uncertainty

There are currently a few lawsuits in Pennsylvania that are challenging PA's DOMA. There is one pending in the U.S. District Court. There is an appeal to the PA Supreme Court concerning the legality of the Montgomery County Clerk of Court's issuance of marriage licenses to same sex couples. Another group of recipients of those licenses has sued for a declaratory judgment in the PA Commonwealth Court. Finally, there is still the unsettled question of a divorce in PA for folks married elsewhere as a same-sex couple.

Some Tips if You Live in PA as a "Same-sex" Couple

  • Get married in a state that recognizes the union;

  • Consider a prenuptial agreement;

  • Apply for social security benefits and survivor benefits when you feel it's appropriate. The SSA is urging same-sex couples to apply, regardless if your state recognizes the union.

  • Act now to amend and prepare your Wills and Trusts. Include provisions if the current law stays the same, but also add provisions in case it changes.

  • Discuss advanced health care directives with your family and partner.

  • Same-sex couples who are legally married will be treated as married for all federal tax purposes.

  • A federally qualified retirement plan or an IRA must treat a same sex spouse as a spouse. Same-sex spouses may rollover or transfer their deceased spouse's benefits to their own IRA.

  • Consider purchasing life insurance to protect your spouse and cover any post-death transfer taxes in PA if PA does not legalize same-sex marriage.