Same-sex divorce offers tax benefits over cohabitation

Posted by Lauren S. CohenJun 28, 20130 Comments

The U.S. Supreme Court issued two historic decisions this week on the issue of gay marriage. First, the Court invalidated the Defense of Marriage Act as a violation of the Fifth Amendment's Equal Protection clause. DOMA's provisions denied federal benefits to gay couples, even those that had obtained legal marriage status in their own states. In a subsequent move, the Court declined to hear an appeal regarding California's Proposition 8, thereby allowing marriages to resume in that state.

Although it may sound cynical, marriage equality also carries important tax consequences during the dissolution of a relationship. Under many state laws, only married couples can divide their marital estate without tax consequences. In other habitation or relationship arrangements, transferring property to an unmarried partner might subject that individual to a gift tax — and the obligation of filing a gift tax return.

Yet perhaps the greatest impact of the law may be symbolic. Simply having the right to marry may not result in a flood of gay marriages. Census data indicates that individuals are both waiting until they are older to marry, at around 26 years of age, as well as marrying less. Being single or in long-term, unmarried relationships seems to be more social acceptable.

However, divorce issues are not limited strictly to married couples. Cohabitants with children will likely encounter some of the same custody and visitation issues. Even childless couples who combined their incomes and purchase real property together might benefit from a consultation with a divorce attorney experienced in property division matters.

Source:, “Supreme Court Upholds Gay Marriage (Divorce Too),” Robert W. Wood, June 26, 2013