Same-Sex Couples are in Need of Estate Planning

Reviewed by Attorney Kim Hegwood Published August 10, 2016 · Updated November 3, 2026

June 26 is the day last year that the Supreme Court declared same-sex marriage legal in the U.S.
Bankrate’s article, “Same-sex marriage tax and estate planning tips,” says the IRS had been accepting jointly filed federal tax returns from same-sex couples married in states that sanctioned their unions since the Supreme Court struck down the Defense of Marriage Act in 2013. But last year’s decision in Obergefell v. Hodges made taxes less troublesome for gay and lesbian married couples at the state and federal levels across the United State.

Same-sex married couples no longer need double duty for state and federal tax filing because the Supreme Court ruling allows joint filing at both levels. There is no need to file differently with a state tax department in a state that previously didn’t recognize same-sex marriages.

The court ruling also opened up a new world of estate planning for same-sex married couples. With that in mind, here are some estate planning tips.

Marital deduction and portability. Same-sex married couples are now able to use the unlimited marital deduction from federal estate tax and gift tax for transfers between spouses. In most situations, one spouse can leave an unlimited amount to his or her surviving spouse without any federal estate tax liability. Also, the portability provisions of federal gift and estate tax laws typically allow a surviving spouse, regardless of gender, to use any portion of his or her deceased spouse’s unused applicable estate and gift exclusion amount—for 2016, that amount is $5.45 million per spouse.

Greater gift splitting. Same-sex married couples also now can use gift splitting—with the annual gift exclusion amount of $14,000. A same-sex spouse is allowed—with the consent of his or her husband or wife—to give a total as if each spouse contributed half of the amount. This lets married couples increase their total gift tax exemption amount.

Tax and estate help. Some states have their own estate taxes in addition to the federal estate tax. Don’t allow a state tax collector to get a big chunk of your estate in taxes by failing to plan for estate taxes.

Every state has different tax laws, which is another reason for all married couples to speak with an estate planning attorney, as these laws are complex and confusing.

Reference: Bankrate (June 23, 2016) “Same-sex marriage tax and estate planning tips”

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