In United States v. Windsor (2013), the U.S. Supreme Court struck down Section 3 of the federal Defense of Marriage Act (DOMA) which required that federal statutes, regulations, and rulings are interpreted as defining marriage as a “legal union between one man and one woman” and a spouse as “a person of the opposite sex who is a husband or a wife.” Then, in Obergefell v. Hodges (2015), the U.S. Supreme Court struck down every ban on same-sex marriage in the United States, including Section 2 of DOMA which provided that states have the right to deny recognition of same-sex marriages licensed in other states.
As a result, same-sex marriages must now be recognized by every state and the federal government. If you’re in a same-sex marriage or about to get married, you’ll want to consider reviewing your estate planning goals, strategies, and documents with an estate planning attorney to determine whether changes are necessary.
Civil Unions and Domestic Partnerships
During the period when same-sex marriages were not recognized universally throughout the country, some states created marriage equivalents such as civil unions and domestic partnerships. These laws vary, and there is now some reconsideration about the need for these laws. Other states (and the federal government) are not required to recognize these marriage equivalents as they are not legal marriages. For example, for federal tax purposes, marriage is not considered to include civil unions, domestic partnerships, and similar provisions. If you are in a civil union or domestic partnership, you might consider taking the next step to marriage.
When you transfer your property during your lifetime or at your death, your transfers may be subject to the federal gift tax, estate tax, and generation-skipping transfer tax (at a top tax rate of 40%). Your transfers may also be subject to state taxes.
Federal Gift Tax
You can make annual tax-free gifts of up to $16,000 per recipient. The amount can be doubled if you split gifts with your spouse. And while you can make deductible transfers to your spouse if you are married, transfers to your partner may be taxable if you are not married. However, you have a basic exclusion amount that protects up to $12,060,000 (in 2022, $11,700,000 in 2021) from gift and estate taxes.
Federal Estate Tax
As with the gift tax, you can make deductible transfers to your spouse, and you have the basic exclusion amount. When you die, your estate can elect to transfer any unused exclusion amount to your surviving spouse (a concept referred to as portability). Your surviving spouse can use your unused exclusion amount, plus his or her own basic exclusion amount, for gift and estate tax purposes. Portability is not available if you’re not married. If you’re married, you should review your estate planning documents to ensure that they properly provide for the marital deduction and applicable exclusion amount.
Federal Generation-Skipping Transfer (GST) Tax
The federal GST tax generally applies if you transfer property to a person two or more generations younger than you (for example, a grandchild). The GST tax may apply in addition to any gift or estate tax. Similar to the gift tax provisions above, an annual exclusion is available, and married couples can split gifts. You can protect up to $12,060,000 (in 2022, $11,700,000 in 2021) with the GST tax exemption. However, the GST tax exemption is not portable between spouses.
A will is quite often the cornerstone of an estate plan. It is a legal document that directs how your property is to be distributed when you die, including amounts that pass to your spouse or partner. It also allows you to name an executor to carry out your wishes as specified in the will and a guardian for your minor children.
If you are married, your spouse may have rights under state law to elect to receive a portion (e.g., one-half or one-third) of your estate, even if you provide otherwise in your will. Your spouse may also be entitled to a portion of your estate even if you don’t have a will. However, if you’re not married, your partner will generally receive only what you provide for in your will (or through joint ownership or beneficiary designations). To protect your spouse and other loved ones, make sure your documents are up-to-date, including your will and beneficiary designations.
Tenancy by Entirety and Community Property
In some states, married couples can use a form of joint and survivor ownership of property known as tenancy by the entirety. While both spouses are alive, a tenancy by the entirety generally provides better asset protection than other forms of property ownership.
Spouses generally own property acquired while married and living in a community property state as community property. If you are married and live in a community property state, consider converting property owned separately by you and your spouse into community property.
Planning for Incapacity
Incapacity can happen to anyone at any time, but your risk generally increases as you grow older. You have to consider what would happen if, for example, you were unable to make decisions or conduct your own affairs. Failing to plan may mean a court would have to appoint a guardian, and the guardian might make decisions that would be different from what you would have wanted.
Health-care directives, such as a living will, a durable power of attorney for health care, or a do-not-resuscitate order can help others make sound decisions about your health when you are unable to do so yourself. There are also tools, such as joint ownership, a durable power of attorney, or living trust, that can help others manage your property when you are unable to do so.
These tools may be useful whether you are married or not. But if you’re not married, they may be critical in giving your partner (who is not related to you) some authority to make decisions for you.
Life insurance plays a part in many estate plans. In a small estate, life insurance may actually create the estate and be the primary financial resource for your surviving family members. Life insurance can also be used to provide liquidity for your estate, for example, by providing the cash to pay final expenses, outstanding debts, and taxes so that other assets don’t have to be liquidated to pay these expenses.
Life insurance proceeds can generally be received free of income tax.
Reconsider your insurance needs to make sure that you have the right types and amounts of coverage, and check your beneficiary designations. For instance, if you are married with children, you might consider a second-to-die policy that pays benefits only upon the death of the surviving spouse.
Even if you’ve successfully completed an estate plan, the next critical step in the overall process is to carry out periodic reviews and to update your plan when appropriate.
Note: The cost and availability of life insurance depend on factors such as age, health, and the type and amount of insurance purchased.
If you were denied some right or benefit because your same-sex marriage was not recognized in the past, you might still be entitled to some corrective action. At a minimum, for example, you can still file an amended federal tax return as married for any year in which the time for filing is still open. You generally have three years from the date you filed your federal tax return or two years after the date you paid the tax due (whichever is later) to amend your return. In general, this means that you may be able to amend 2014 returns until as late as October 15, 2018, depending on when you filed your 2014 return.
A Word of Caution
The decision to marry can involve many complex factors. Whether you view certain state laws as favorable may depend on your own situation. For example, depending on whether you bring significant assets into the marriage, you may have a different viewpoint of a state law that allows a surviving spouse to elect a share of the estate regardless of what is provided in a will.
Many tax provisions are favorable to married taxpayers. Marital deductions split gifts, and portability of the applicable exclusion amount are just a few examples. However, many tax provisions are designed to restrict tax benefits if the parties to a transaction are related. You might want to consult a tax professional.