The IRS does not assess federal estate taxes on bequests to a spouse. However, when the wife of Edith Windsor died, Edith had to pay $350,000 of federal estate taxes. If Edith’s spouse had been a man instead of a woman, the estate taxes would have been zero. I do not know Ms. Windsor, but suspect that she would consider $350,000 to be an acceptable toll charge for being married to a woman rather than a man.

Edith had to pay estate taxes because the Defense of Marriage Act (“DOMA”) defines marriage as a union between one man and one woman. Edith and her wife lived in New York, whose laws considered them as spouses because they had been legally married under Canadian law.

The ACLU has filed suit on behalf of Edith against the U.S. government claiming that charging Edith $350,000 because her spouse was a woman rather than a man violates the U.S. Constitution. Edith claims that DOMA interferes with the rights of states to define marriage and violates the Constitution’s equal protection clause.

Some federal courts have already ruled that DOMA is unconstitutional. Other courts have upheld DOMA’s constitutionality. Eventually, the U.S. Supreme Court will decide this issue.