Same Sex Couples Face Uncertainty When It Comes to Estate Planning


What many people do not realize is that although one-sex marriage is recognized by several states, it is not recognized by federal law. This has led to inconsistent results and uncertainties when it comes to planning, as things that concern same-sex couples for state purposes are not for federal purposes.

Federal Law on Marriage Protection
For federal purposes, marriage is governed by the DOMA, a law passed in 1996, which defines the marriage as follows: "The word" marriage "means only a legal union between a person and a woman husband and wife, the word "spouse" refers only to a person of the opposite sex who is a spouse or spouse. "1 USC ยง 7. Federal law does not even recognize same-sex marriage in jurisdictions that recognize it.

Several countries recognize the same sex unions, although many do not
On the other hand, several states * have authorized laws recognizing same-sex marriages. So far six countries (Vermont, Connecticut, Iowa, Massachusetts, New Hampshire and New York) and Columbia have legalized same-sex marriages. Other countries will soon be able to join the list as referenda on the issue arise in other countries and some recognize same-sex marriages in other jurisdictions.

These new laws often face controversy. For example, in 2005, when Connecticut became the second state in the United States (after Vermont) to adopt a civil law on same-sex couples, the decision to provide civil unions and not to same-sex marriages was challenged in the State Courts. In 2008, the court ruled that if it did not give the same-sex couples the full rights, responsibilities and the name of the marriage, it was against the equal protection clause in the Connecticut constitution and ordered the legalization of same-sex marriages. On October 1, 2010, all existing civil unions were automatically turned into marriages.

At that time, however, some 39 countries banned marriage in the same way under a law or a constitution.

Property taxation Unlimited maritime deduction
One consequence of this dichotomy is the possibility that a couple of the same sex can not benefit from the "unlimited financial deduction" of federal real estate tax provisions that are available to heterosexual couples. Unlimited military deduction allows the person to leave to his spouse any amount of money or other assets exempt from real estate tax. Therefore, when a spouse of the same sex does not qualify as a spouse for federal purposes, when one of the partners dies and the property passes to the other, it is subject to real estate tax as if they were not married. As a result, a substantial property tax may be payable to a couple of the same sex when there is no such person as a heterosexual couple under the same circumstances and the same property. Since taking advantage of marginal deduction is an important planning tool, uncertainty of income in such situations makes planning of properties extremely difficult and uncertain.

DOMA disputes in court
The surviving spouse has begun to challenge this inconsistency in court claiming that the DOMA is unconstitutional and in violation of the same sex in the sense of the equal protection clauses of the fifth amendment.

Uncertainty about same-sex couples performing property planning
Although several judgments have ruled that the Home is inappropriate, while the US Supreme Court decides this issue, there will be uncertainty when same-sex couples make property. Needless to say, the consequences and nuances are complex and numerous, and the advice of an experienced expert in the field, such as a lawyer or an accountant, is strictly recommended for anyone who deals with these issues.


* Canada is one of the earliest jurisdictions that recognized same-sex marriage. Therefore, while the US states began to recognize same-sex marriages, many American couples of the same sex traveled to Canada to get married.