I do (sort of ): Tax planning strategies for same-sex couples in common-law marriage states after marriage equality

John J. Masselli, Blanca L. Runkel

Research output: Contribution to journalArticlepeer-review

Abstract

The U.S. Supreme Court, in Obergefell v. Hodges, ruled that the fundamental right to marry is constitutionally guaranteed to same-sex couples. However, neither this decision nor subsequent Treasury regulations specifically address commonlaw marriage (currently allowed in 11 states), the majority of which previously required marriage to be between opposite-sex couples. After Obergefell ruled such requirements unconstitutional, nine of those states modified their common-law statutes to include same-sex couples. Because the federal government has long recognized common-law marriage, this paper discusses prospective and retroactive income and wealth-transfer tax planning opportunities for eligible, common-law married, same-sex couples that qualify to file as married filing jointly for the current tax year and any open tax year for which they would have been considered common-law married. This manuscript presents a legal discussion, along with a variety of examples and tax planning strategies for samesex couples in common-law marriage states.

Original languageEnglish
Pages (from-to)72-88
Number of pages17
JournalATA Journal of Legal Tax Research
Volume14
Issue number1
DOIs
StatePublished - 2016

Keywords

  • Common-law marriage
  • Obergefell
  • Retroactive tax planning
  • Same-sex marriage

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