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Effects of U.S. v. Windsor on Same -Sex Taxes

What, you say, I’ve never heard of U.S. v. Windsor. You have, unless you just came out of a hole in the ground. You just don’t know it. U.S. v. Windsor is the official name of the Supreme Court case striking down DOMA, the Defense of Marriage Act. It was an estate tax case. Three weeks after the decision everyone is still sorting out the ramifications of the case, which mandates that Congress cannot discriminate between same sex and heterosexual marriages. If a marriage is valid in the state, it is valid for purposes of federal law.

Validly married (according to state law) same-sex couples should consider a number of options right now in light of Windsor. These include:

Filing protective claims for refund for imputed income.

Filing amended returns to change their status to “married filing jointly.”

Review estate planning documents (wills, trusts, etc.) to make sure that the amount and structure of any spousal bequests is still appropriate, given that the unlimited marital deduction for estate and gift taxes is now available to same-sex couples.

Review retirement account beneficiary designations and joint and survivor annuity elections to make sure they are still appropriate.

Consider splitting gifts between spouses. Up to Windsor spouses in same-sex marriages could only exclude their own portion ($14,000 currently) of gifts made annually without dipping into the lifetime exemption. Now couples, with each other’s consent, can split gifts. This means one partner can make a gift and with the other partner’s consent that gift can be offset against the other partner’s annual exclusion.

These are just a few of the considerations presented to same-sex couples by Windsor. You should consult with a qualified estate planning professional for your particular case.

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