Several challenges to the Defense of Marriage Act could reach the Supreme Court within the next year, but only one involves the estate tax that surviving same-sex spouses are forced to pay when a partner dies. The consequences can be severe, as Edith Windsor, the 83-year-old plaintiff in that case, learned after her wife, Thea Spyer, died in 2009.
A mathematician and former IBM programmer, Windsor calculated the financial impact of 1996’s DOMA, which just added to the unquantifiable pain of losing her partner of more than 40 years. She paid over $363,000 in federal estate taxes on two properties the couple owned, in Manhattan and on Long Island, solely because the U.S. government did not recognize their marriage. The women married in Canada in 2007 after first becoming engaged in 1967, and Windsor cared for Spyer, a clinical psychologist, as she battled multiple sclerosis for three decades.
“However, if Thea had been Theo, I would have had to pay no estate tax whatsoever,” she says. “Even if I had met and married ‘Theo’ one month before he died, I would have had to pay no estate tax.”
That unequal treatment did not compute, and Windsor sued the government with help from the American Civil Liberties Union and the law firm Paul, Weiss, Rifkind, Wharton, and Garrison. She argued that DOMA violated her equal protection rights, and in June a federal judge in New York agreed and found section 3 of the law, which limits the federal definition of marriage to unions of a man and a woman, unconstitutional.