Beth Shapiro Kaufman spoke with Tax Notes concerning the estate planning implications for same-sex couples after the Supreme Court ruled DOMA unconstitutional. For the full story, please visit Tax Notes' website.
Excerpt taken from the article "Supreme Court Strikes Down Marriage Definition in DOMA" by Matthew Dalton, Jaime Arora, and Harrison Taylor for Tax Notes.
Beth Shapiro Kaufman of Caplin & Drysdale said that the Court's opinion appeared to prevent the federal government from making a pronouncement on who is considered married, meaning the IRS could not adopt a general rule that would override state law to determine whether a couple is married.
Kaufman noted that current tax law provides different treatment to married couples based on state law depending on whether they live in a community property state. "On the death of the first spouse in a community property state, all of the marital property receives a step-up in basis," said Kaufman, whereas only the property owned by the decedent receives a step-up in common law states. "We just live with that," she said.
Kaufman commented that there may be some same-sex surviving spouses who could claim refunds of estate tax, as Windsor did. However, regarding couples who may consider refiling income tax returns for prior years as married, "it would take an unusual set of circumstances for a couple to have a benefit," she said.