• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
  • Home
  • Our Firm
    • About Our Firm
    • Attorney and Staff Profiles
    • Speaker Connection
  • Services
    • Asset Protection & Business Planning
    • Elder Law & Medicaid Services
    • Estate Planning Services
    • Financial Planning Assistance
    • Incapacity Planning
    • IRA & Retirement Planning
    • Legacy Planning
    • LGBTQ Estate Planning
    • Pet Planning
    • Probate
    • SECURE Act
    • Special Needs Planning
    • Wills & Trusts
  • Elder Law
    • Coping with Alzheimer’s
    • Guardianship and Conservatorship
    • Medicaid Crisis Planning
    • Medicaid Planning
  • Seminars
  • Webinars
  • Resources
    • Communities We Serve
      • Keller, Texas
    • Elder Law Resources
      • Elder Law & Medicaid Definitions
      • Elder Law Reports
    • Estate Planning Resources
      • 3 Reasons to Create a Trust
      • Estate and Gift Tax Figures
      • Estate Planning Articles
      • Estate Planning Definitions
      • Estate Planning Reports
        • Advanced Estate Planning
        • Basic Estate Planning
        • Estate Planning for Niches
        • Trust Administration
      • Estate Planning Worksheet
      • Is Your Estate Plan Outdated?
    • Free Consultation
    • Free Estate Planning Seminars
    • Frequently Asked Questions
      • Estate Planning
      • Trust Administration & Probate
    • Newsletters
    • Our Client Care Program
    • Pre Consultation Form
    • Professional Resources
      • Educational Alerts
  • Reviews
    • Our Reviews
    • Review Us
  • Contact Us
  • Blog

McGee Law Firm

Your Resource for Estate Planning, Elder Law and Medicaid / VA Planning

Call Us Today 817-899-3286
  • Facebook
  • Instagram
  • LinkedIn
  • YouTube
Attend a Free Seminar
Home / Estate Planning / Law in the U.S. can be Participatory

Law in the U.S. can be Participatory

June 16, 2020 by Brandon McGee

Blog Author: Stephen C. Hartnett, J.D., LL.M. (Tax), Director of Education,
American Academy of Estate Planning Attorneys, Inc.

In some countries, like a dictatorship or a true monarchy (not a constitutional monarchy such as the United Kingdom), people do not really participate in making the law. The law is handed down by fiat. In the United States, our laws are enacted by our elected representatives. Sometimes, those laws may be viewed as violating the fundamental rights guaranteed to all of us by our Constitution. That’s when the judiciary may be asked to step in to make an impartial determination as to whether the law violates the fundamental rights embodied by our Constitution. In our system, anyone who is truly harmed by a law may challenge its constitutionality. They can do this by challenging the application of the law in court. Here’s a quick story of how one person participated in changing the law in the United States.

Edith Windsor married her longtime partner, Dr. Thea Spyer, in 2007. Later, when Dr. Spyer died in 2009, the estate filed a federal estate tax return, claiming a marital deduction for the assets going to Ms. Windsor, her spouse under New York law. The IRS denied the deduction based on the Defense of Marriage Act (DOMA), which prohibited the federal government from recognizing same-sex marriages, even those recognized by a state. The IRS disallowed the marital deduction for assets going to Windsor and claimed, as a result, the estate owed more than $363,000 in federal estate taxes. The estate paid the amount owed and sued for a refund in federal district court, challenging the IRS’ denial of the marital deduction. (Often taxpayers pay a disputed tax and then file suit in federal district court rather than not paying and challenging the amount due in the U.S. Tax Court, which is often viewed as a less favorable venue.) She won at the federal district court. The case was appealed to the U.S. Court of Appeals, which affirmed the decision of the district court. Finally, the case ended up at the U.S. Supreme Court, which affirmed the decision of the lower courts.

The U.S. Supreme Court held DOMA was unconstitutional insofar as it denied a benefit (a deduction) to same-sex married couples while granting the same benefit to similarly situated heterosexual couples. Based on the decision in U.S. v. Windsor, same-sex married couples gained equality of treatment under the law by the federal government. The Court did not determine whether same-sex couples had a constitutional right to marry, though they would reach that determination two years later in another case, Obergefell v. Hodges, which built on the Windsor decision.

Ms. Windsor, who demonstrated how an individual in our country can participate in making and shaping the law, died recently. Here is a link to an article in the New York Times about her life and death.

  • Author
  • Recent Posts
Brandon McGee
Brandon McGee
Brandon McGee enjoys a successful law practice focusing on estate planning, elder law, Medicaid preplanning and crisis planning, and probate. Brandon and his team combine legal skills with compassion and understanding to develop estate plans that are personalized to the needs of each of their clients.
Brandon McGee
Latest posts by Brandon McGee (see all)
  • Common Mistakes in Estate Planning - March 16, 2023
  • How to Conduct an Estate Plan Review - March 15, 2023
  • What Happens When You Don’t Trust Your Trustee – Part I - March 14, 2023

Filed Under: Estate Planning, Legal Education

About Brandon McGee

Brandon McGee enjoys a successful law practice focusing on estate planning, elder law, Medicaid preplanning and crisis planning, and probate. Brandon and his team combine legal skills with compassion and understanding to develop estate plans that are personalized to the needs of each of their clients.

Primary Sidebar

Blog Subscription

Sign up for our estate planning blog to receive all of our latest news and updates!

  • This field is for validation purposes and should be left unchanged.

Follow us

  • Facebook
  • Instagram
  • LinkedIn
  • YouTube

TESTIMONIALS

Client Review
May 25, 2021
    

Brandon McGee is knowledgeable, experienced and professional regarding Estate Planning. The entire process of multiple meetings to establish our input, draft and sign documents and fund the Trust were well organized and clearly explained. At completion, we were presented with a very well organized binder with the documents (both paper and electronic) and lists for future action.  In short, we find Brandon McGee and his staff to be competent, professional and friendly. ~ Brian C.

default image
Brian C.

Fort Worth Address

Fort Worth
810 W. 10th Street
Fort Worth, TX 76102
United States (US)
Phone: (817) 899-3286
See Larger mapGet Directions

Fort Worth Map

map

Southlake Address

Southlake
101 River Oaks Dr., Ste. 110
Southlake, Texas 76092
United States (US)
Phone: (817) 899-3286
See Larger mapGet Directions

Footer

  • Advantages of Working With our Firm
  • About the American Academy
  • Disclaimer
  • Sitemap
  • Contact Us

Connect to Us

  • Facebook
  • Instagram
  • LinkedIn
  • YouTube
footer logo

© 2023 McGee Law Firm
All Rights Reserved