Estate Tax: The New Rules for Same-Sex Couples

The Supreme Court's DOMA decision changes the rules for federal estate tax.

Related Ads

Need Professional Help? Talk to a Lawyer

Enter Your Zip Code to Connect with a Lawyer Serving Your Area

searchbox small

When the U.S. Supreme Court ruled that much of the Defense of Marriage Act (DOMA) was unconstitutional in June 2013, it made big headlines—but how many people realized that the case before the court was about the federal estate tax?

DOMA’s constitutionality came before the Court because the law prohibited the IRS from recognizing same-sex marriages that were valid under state law. As a result, New York resident Edie Windsor had to pay federal estate tax on the money she inherited from her late spouse, simply because Edie had been married to a woman, Thea Spyer. Had Thea been Theodore, Edie would have inherited everything tax-free; as it was, the estate paid $363,000 to the IRS. (She’ll now be getting a refund, plus interest. It's not clear if other surviving spouses in the same position might be entitled to a refund.)  

Federal Taxes

Despite Edie Windsor’s victory, the Court’s decision didn't make it clear whether or not the IRS would treat all same-sex married couples as married for tax purposes. What if a couple married in one state but moved to another that didn't recognize same-sex marriage? Two months after the Court's ruling, the IRS announced that it would treat all legally married same sex couples as married for federal tax purposes, no matter which state they live in.

That means that if a couple gets married in a state that allows them to enter into a valid same-sex marriage, and then moves to a state that doesn't recognize same-sex marriage, they are still married for IRS purposes. They must file their income taxes as married and are entitled to the spousal benefits written into the federal estate tax.

States where same-sex couples can enter into a valid marriage are: California, Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont, and Washington.

The ruling does not extend to civil unions or domestic partnerships, currently available in Colorado, Hawaii, Illinois, Nevada, New Jersey, and Oregon.

State Estate Taxes

Sixteen states and the District of Columbia currently impose their own estate tax in addition to the federal tax. And like the federal government, these states exempt from the tax all money, no matter how much, that passes to the surviving spouse.

So same-sex couples face the same issue: Will the state recognize their marriage as valid? Most states that have their own estate tax, except Hawaii, Illinois, Oregon, and Tennessee, offer same-sex marriages. That means that surviving spouses in these states should be able to inherit from their late spouses without paying either state or federal estate tax.

States That Impose an Estate Tax

Connecticut

Delaware

District of Columbia

Hawaii

Illinois

Maine

Maryland

Massachusetts

Minnesota

New Jersey

New York

Oregon

Rhode Island

Tennessee

Vermont

Washington

State Inheritance Taxes

Six states collect inheritance tax from certain people who inherit from a deceased resident. Surviving spouses are exempt from the tax. Three of these states -- Iowa, Maryland, and New Jersey -- allow same-sex marriages. In the others, surviving spouses may have to pay state inheritance tax.

States That Impose an Inheritance Tax

Iowa

Kentucky

Maryland

Nebraska

New Jersey

Pennsylvania

Keeping Up to Date

Obviously, things are changing fast when it comes to same-sex marriage, civil unions, and domestic partnerships. Just a few examples:

  • The ACLU and other civil rights groups are going to court to challenge state bans on same-sex marriage.
  • In New Mexico, several organizations have asked the state Supreme Court to rule on whether or not the state will recognize valid out-of-state marriages.
  • In Tennessee, groups have sued over the state's refusal to recognize valid out-of-state marriages.

For more information on how the Windsor decision on the Defense of Marriage Act affects other legal rights and responsibilities, see The Supreme Court’s DOMA Decision.

Create Your Estate Plan

WillMaker

Get Started with Quicken WillMaker Plus!

Everything you need to create a complete estate plan:

Write a legally valid will

Avoid probate with Nolo's Living Trust

Create a health care directive

Create a durable power of attorney

Prepare executor documents

Save on attorneys fees

Find an Estate Planning Lawyer

Need professional help?
Enter your zip code to find an estate planning lawyer. (e.g., 10110)
LA-NOLO4:DRU.1.6.2.20140813.27175