Taxation of Same-Sex Married couples after Windsor and Hollingsworth

The Supreme Court’s two recent decisions ( Windsor and Hollingsworth ) holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional have raised a host of tax issues for same-sex couples. Many of these issues stem from the fact that the decisions, while invalidating part of DOMA for federal law purposes, have not affected the statutory or constitutional provisions of the 35 states banning same-sex marriage and preventing the recognition of such marriages legally contracted elsewhere. Thus, while same-sex married couples are now “spouses” for purposes of the Internal Revenue Code and ERISA, they do not enjoy that status in the “non-recognition” states. A divorcing same-sex couple residing in a state where the marriage is legal will be subject to the provisions of Internal Revenue Code Sections 71 and 1041 governing alimony and inter-spousal transfers of property, but it is not clear what happens when one of them moves across a state line to a non-recognition state. The treatment of a division of non-qualified pension benefits (not subject to ERISA) is likewise problematic. We can only hope the IRS will provide guidance on these and other issues, but tax advisors may be sure these issues will create problems for same-sex couples for years to come