Two cases are making their ways through federal court right now that could affect how estate planning and probate attorneys approach the federal estate tax. The cases don't challenge the tax law, though. They challenge the federal Defense of Marriage Act that bars the government from recognizing same-sex unions. Florida is one of 29 states that have barred same-sex marriage, but state law does not affect how the federal government levies estate taxes.

One case involves two women who had been together for 40 years before they got married. They waited so long because New York, where they lived, did not recognize same-sex marriage until just a few years ago. A same-sex marriage could not be performed in the state, but New York would recognize a union that is legal in another jurisdiction. They tied the knot in Canada and went home. They were 75 and 77 years old.

When one died two years later, her widow was hit with a $363,053 federal tax bill. She would have owed nothing if her spouse had been a man. Under the Defense of Marriage Act, same-sex marriage is not recognized, and marital status is a factor in eligibility for benefits from more than 1,000 federal programs.

This case and another involving seven plaintiffs prompted the Obama administration to change its position on DOMA. Attorney General Eric Holder announced last week that the federal government will not defend the law in court.

The decision has raised hopes in some camps and caused consternation in others. Opponents of DOMA are relieved to have viable challenges to the law (it's been an uphill battle until recently). Proponents of the law say it's not the time to debate such a divisive issue -- Americans are more interested in jobs and the economy, and lawmakers should focus their efforts there.

It seems the estate tax can't stay out of the headlines. First, it was about the moratorium in 2010. Then, it was about the new tax law that will only be in place for two years. Now, it's about eligibility for same-sex couples.

Whatever happens, estate planning and probate attorneys on both sides of the issue will be watching the cases closely.

Source: Bloomberg, "Widow's $363,000 Tax Bill Led to Obama Shift on Marriage Act," Andrew M. Harris, 02/ 27/2011