Windsor Revisited: IRS Guidance Recognizing Same-Sex Marriages

August 30, 2013

In response to the U.S. Supreme Court decision in Windsor v. United States, __U.S.__, 133 S.Ct. 2675 (2013), the IRS issued guidance yesterday adopting a general rule recognizing same-sex marriages. Revenue Ruling 2013-17 will take effect on September 16, 2013, and applies to a marriage entered into in any of the 50 states, the District of Columbia, the U.S. territories or a foreign country. Domestic partnerships and civil unions are explicitly not covered by the ruling.

Under the ruling, same-sex couples that have been legally married in a jurisdiction that permits marriages between same-sex couples will be treated as married for federal tax purposes. The ruling applies for all federal tax purposes, whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that rejects same-sex marriage.

Same-sex couples should contact their income tax advisors immediately to discuss the impact of this ruling on income tax considerations such as filing status, exemptions, deductions, credits and benefits. After the ruling becomes effective, same-sex couples may consider filing amended income tax returns for tax years still open under the statute of limitations to take advantage of deductions, exemptions or benefits previously unavailable. Most taxpayers would be able to look back three years (2010, 2011 and 2012) to obtain a refund, although in certain circumstances earlier tax years remain open. However, there is no obligation to file amended returns if it would not be advantageous to do so.

The impact of Windsor and Revenue Ruling 2013-17 is far reaching with respect to the estate, gift and generation-skipping taxes as well and means that same-sex couples are now eligible, for example, to:

  • Elect to split gifts on a federal gift tax return;
  • Claim the unlimited marital deduction for gifts and bequests to a spouse; and
  • Elect portability of a deceased spouse’s unused applicable exclusion amount.

Also, the revenue ruling is clear that additional guidance is expected, especially in the employee benefits area. For more on the impact of Windsor on employee benefits, click here.

For more on the impact of Windsor on income, estate and gift tax issues, click here.

For more on the ruling from the IRS, click here.

Fiduciary Advisory Services and Private Wealth Services

McGuireWoods’ fiduciary advisory services and private wealth services teams stand ready to advise individuals, financial institutions, and other clients about planning, tax, and fiduciary matters. McGuireWoods’ private wealth services group has been ranked by Chambers, the international rating service for attorneys, as one of the top wealth management legal practices in the country for several years. Please click here for a full listing of our lawyers and their locations.