Understanding tax, benefits options post-DOMA

On June 26, 2013, in a 5-4 decision, the U.S. Supreme Court ruled most of the Defense of Marriage Act (DOMA) to be unconstitutional. The result of this landmark case means that same-sex marriages enacted into law by any state will now be recognized for federal tax and benefit purposes.   The case, United States v. Windsor, involved two New York women whose same-sex marriage was legally recognized by the state of New York. When one of the parties died, the IRS denied a federal estate tax marital deduction for the survivor and accessed $363,053 in federal estate taxes on the taxable estate of the deceased. The U.S. Supreme Court found that DOMA violated the guarantee of equal protection and due process under the U.S. Constitution. The Court went on to state that the U.S. Constitution delegates no authority to the federal government on the subject of marriage and divorce.   Despite the ruling, the case does not require all states and state officials to recognize same-sex marriages. The Court let stand a provision of DOMA that permits a state not to recognize same-sex marriage. Therefore, many same-sex living arrangements will still be denied certain federal spousal benefits since 34 states currently do not allow same-sex marriage for their residents. The 16 states that currently recognize same-sex marriage are: California, Connecticut, Delaware, Hawaii, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey,  New Mexico, New York, Rhode Island, Vermont, and Washington. On June 1, 2014, Illinois will become the 17th state to recognize same-sex marriages.   It’s important to keep in mind that all states have certain residency requirements before couples may obtain a marriage license in that state. This residency requirement usually involves physically living in that state for a certain period of time and providing evidence of residency. So, a same-sex couple would have to play by the same rules as heterosexual couples for purposes of satisfying the residency requirement of a state that also permits same sex marriage.   Once the state residency requirement is met, the marriage has been certified by either a civil or religious ceremony, and a marriage license has been issued, then the couple is considered to have been legally married and can move to any other state of their choice. This includes moving to another state that does not currently allow same-sex marriage. For all federal tax and federal benefit purposes, this same-sex couple will be considered married. This is true even though the state they subsequently move to does not recognize same-sex marriage for any state law purposes.   For same-sex couples legally married in the 16 states permitting same-sex marriage, this also means that if these couples later divorce, they will be governed by the state laws of domestic relations and divorce in the state where they reside at the time of the divorce. These same-sex couples will have to negotiate property settlement agreements the same as heterosexual couples seeking divorce in that state. It should also  be noted that the Windsor decision does not apply to so-called civil unions or domestic partnerships, which are permitted under certain state laws.     The Supreme Court decision in the Windsor case opened up a number of federal tax and benefit planning options to legally married same-sex couples in the 16 states that recognize such marriages. The federal tax and retirement benefit concepts that are now available for same-sex couples are:   Income taxes