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Federal and State Restrictions on Marriage Create a Cumbersome Tax Filing Environment for Same-Sex Couples

Friday, February 8, 2013
By Jéanne Rauch-Zender and Jessica Lechuga

Jéanne Rauch-Zender and Jessica Lechuga are state tax law editors with Bloomberg BNA.


“The pain of discrimination is still felt in America . . . (b)y our gay brothers and sisters . . . still denied their rights . . . (D)iscrimination cannot stand -- not on account of color or gender; how you worship or who you love. Prejudice has no place in the United States of America.” President Obama, July 17, 2009.

Will the year 2013 hold the freedom and equality so many people have fought for? The Supreme Court of the United States will hear two cases challenging the constitutionality of restricting marriage to opposite sex couples. Oral arguments in Hollingsworth v. Perry,1 expected to begin March 26, will address the constitutionality of California's Proposition 8, a ballot initiative that amended the state's constitution to limit marriage within California to a man and a woman. The following day, on March 27, oral arguments will begin in United States v. Windsor,2 questioning whether the definition of marriage as a legal union between one man and one woman, as set forth in the Defense of Marriage Act (DOMA), is constitutional. These battleground cases may decide an equality issue that affects many aspects of life, including tax.

This article provides a breakdown of the states' current approaches to same sex marriages for tax filing purposes, presenting the possible ramifications awaiting married same-sex couples when the U.S. Supreme Court decides the aforementioned cases.

A brief history of same-sex tax filing shows that the Supreme Court of Hawaii caused significant distress among opponents to same-sex marriage when, in 1993, it required the State show a compelling interest in prohibiting same-sex marriage.3 In response to the prospect that same-sex marriage might become legal in Hawaii, and that the Full Faith and Credit Clause of the United States Constitution might compel other states to recognize those marriages,4 the U.S. Congress enacted DOMA. Numerous state statutes and constitutional amendments followed, banning same-sex unions.

DOMA was signed into law by President Clinton on Sept. 21, 1996, and defines marriage as the legal union of one man and one woman for federal and inter-state recognition purposes in the United States. DOMA summarizes the non-recognition of same-sex marriages for all federal purposes, including the filing of tax returns. From its inception, congressional sponsors declared that the bill amends the United States Code by making “explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex.”5 During sponsorship, Sen. Don Nickles of Oklahoma added, “if some state wishes to recognize same-sex marriage, they can do so (but) the bill would ensure that the 49 other states don't have to and the Federal Government does not have to.”

In 1997, the U.S. General Accounting Office report, subsequently updated in 2004, “identif(ied) federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor.”6 The office divided the laws into 13 categories:

• social security and related programs housing, and food stamps;

• veterans' benefits;

• taxation;

• federal civilian and military service benefits;

• employment benefits and related laws;

• immigration, naturalization, and aliens;

• Indians;

• trade, commerce, and intellectual property;

• financial disclosure and conflict of interest;

• crimes and family violence;

• loans, guarantees, and payments in agriculture;

• federal natural resources and related laws; and

• miscellaneous laws.

The martial relationship has the most pervasive impact on Social Security, housing, food stamps, veteran's benefits, pensions and survivor benefits; taxes on income, estates, gifts, and property sales; and benefits due federal employees, both civilian and military.

With respect to federal taxation, there are five possible choices of tax filing status a taxpayer may claim: Single individual, married person filing jointly or surviving spouse, married person filing separately, head of household, and a qualifying widower with dependent children. However, because the federal government does not recognize same-sex marriage, the married filing jointly and married filing separately tax categories are not options for same-sex married couples filing their federal return. Consequently, these same-sex couples are not able to combine their incomes and deductions in an effort to take advantage of some credits and lower tax rates.

Today we are at a critical crossroad. Were the United States Supreme Court to strike down DOMA and martial limitations, there could be quite an uprising of same-sex married couples, previously forced to file in the above limited categories, who would be entitled to a windfall in refunds. However, while the United States Supreme Court will begin to hear arguments in the cases in March, the date on which the Court will render its final decision is unknown. In light of this uncertainty, same-sex married couples may wish to preserve and maximize their refund options by filing a “protective claim” with the Internal Revenue Service.7

Under a “protective claim,” taxpayers may file a claim for credit or refund of an overpayment of any tax within three years from the time the return was filed or two years from the time the tax was paid, whichever of such periods expires later, or if no return was filed by the taxpayer, within 2 years of the last payment. To protect against the running of the statute of limitations, same-sex married couples should consider amending their last three returns (i.e., dating back to 2009 taxes filed April 15, 2010) by changing their filing status to “married filing jointly,” and marking each return with “protective refund claim” in clear visible writing on the top of each return.

Andrew Jackson, the seventh President of the United States, once said “the wisdom of man never yet contrived a system of taxation that would operate with perfect equality.” Dawn carries the prospect of a new day, new means, new methods, and perhaps the warrant of new rights.

Breakdown of Federal Tax Benefits

Expense/Deduction Opposite-Sex Couples Same-Sex Couples
Standard deduction Standard deduction amounts for 2013 are:
$12,200 for married taxpayers filing jointly and surviving spouses;
$8,950 for head of household;
$6,100 for individual taxpayers and married taxpayers filing separate.
For purposes of the standard deduction, the amount for an individual who may be claimed as a dependent by another taxpayer cannot exceed the greater of $1,000 or ($350 + the individual's earned income), up to the applicable standard deduction amount. An additional $1,200 standard deduction amount is available for the aged or the blind, increased to $1,500 if the taxpayer is single and not a surviving spouse. (See Rev. Proc. 2013-15; IRC § 63(c)(5) and (f))
$6,100 for individual taxpayers, or
$8,950 for head of household. (Rev. Proc. 2013-15)
Child and dependent care credit Credit for care of a “qualifying person,” (dependent child(ren) 12 years of age or younger, mentally or physically incapacitated spouse, and mentally or physically incapacitated persons meeting certain tests. (IRS Publications 501 and 503 (2012)) No credit unless same-sex spouse is a “qualifying person;” children must be dependent child(ren) 12 years of age or younger. (IRS Publications 501 and 503 (2012))
Education deductions and credits Entitled to deductions and credits for self, spouse, and dependents. (IRS Publications 501 (2012) and 970 (2011)) Entitled to deductions and credits for self and dependents (qualifying relative8 or qualifying child). (Rev. Proc. 2013-15; IRS Publications 501 (2012) and 970 (2011); IRC 152(d)(2))
Medical and dental expenses Entitled to deductions and credits for self, spouse, and dependents. (IRS Publication 502 (2012)) Entitled to deductions and credits for self and dependents (qualifying relative or qualifying child). (IRS Publication 502 (2012))
Spousal and dependent-related deductions/exemptions Allowed exemption for self, and for opposite sex spouse if filing jointly; allowed an exemption for each dependent. (IRS Publication 501 (2012)) Entitled to exemption for self and dependents (qualifying relative or qualifying child). (IRS Publication 501 (2012))
Estate/gift tax Property may pass from one spouse to another without being subject to gift/estate tax (unlimited marital deduction); gift splitting allowed. (IRS Publication 950 (2011)) Same-sex couples are considered unmarried, inheritances from one partner to the other taxable; gifts above the exclusion amount taxable. No gift splitting allowed. (IRS Publication 950 (2011))
Employment benefits Employment benefits paid to an employee's opposite-sex spouse and/or child(ren) through employment are exempt from tax. (IRC §§132(h); 104(a)(3)) Same-sex spouse receiving employment benefits must be reported by the employee spouse as taxable income. (IRC §§132(h), 104(a)(3))
Inheriting IRA/401k Spousal beneficiaries may rollover IRA/401k into their own without being subject to tax at that time. A same-sex partner, considered a non-spousal beneficiary of a 401k, is allowed to roll a lump sum distribution into his/her own “inherited” IRA account, but will begin immediate required minimum distributions (RMDs). (IRC §401(a)(9)(B)) Same-sex spouse may roll-over inherited IRA assets into his/her own “inherited” IRA thereby entitling the beneficiary to receive payments over his/her lifetime rather than having to take a lump-sum distribution as was required prior to 2007. (IRC §402(c)(11)(A))
Adoption credit Married taxpayers must file a joint return to take the credit or exclusion. (IRS Instructions for Form 8839 (2012)) Each same-sex partner may qualify to claim the adoption credit on the amount of the qualified adoption expenses paid or incurred for the adoption. The same-sex partners may not both claim credit for the same qualified adoption expenses, and neither same-sex partner may claim more than the amount of expenses that he or she paid or incurred, subject to limitation. (IRS Instructions for Form 8839 (2012))

Breakdown of Federal Employment Benefits

Expense/Deduction Opposite-Sex Couples Same-Sex Couples
Dependent Care Flexible Spending Accounts Entitled to FSA. May use daycare FSA for any dependent. (www.fsafeds.com)
FMLA Entitled. (See The Family and Medical Leave Act of 1993, 29 U.S.C. §2601 (101-102)) Entitled to leave under FMLA to care for his/her child or parent. Not entitled to leave to care for same-sex spouse because not recognized as a “spouse” for federal purposes. (See The Family and Medical Leave Act of 1993, 29 U.S.C. §2601 (101-102))
COBRA Entitled. (IRC §4980B(g)(1)(A)) Not entitled. Federal requirement that COBRA be offered to “qualified beneficiaries,” i.e., a spouse or “dependent child,” not met by same-sex spouses and domestic partners under federal law. (IRC §4980B(g)(1)(A))

State Tax Filing Options for Same-Sex Couples

State State Constitution Recognizes Same-Sex Marriages, Civil Unions or Domestic Partnerships Within the State Recognizes Same-Sex Marriages, Civil Unions or Domestic Partnerships From Other Jurisdictions Available Filing Status
Alabama Bans same-sex marriage. (Ala. Const. amend. 774 (1901)) No. (Ala. Code §30-1-19) No. (Ala. Code §30-1-19) Single; head of household.
Alaska Bans same-sex marriage. (Alaska Const. art. I, §25 (1959)) No. (Alaska Stat. §25.05.011) No. (Alaska Stat. §25.05.013) Does not have a personal income tax.
Arizona Bans same-sex marriage. (Ariz. Const. art. 30, §1 (1910)) No. (Ariz. Rev. Stat. Ann. §25-101) No. (Ariz. Rev. Stat. Ann. §25-112) Single; head of household.
Arkansas Bans same-sex marriage. (Ark. Const. amend. 83, §§1, 2 (1874)) No. (Ark. Code Ann. §9-11-208) No. (Ark. Code Ann. §9-11-107) Single; head of household.
California • May 2008: In In re Marriage Cases,9 the California Supreme Court held that California's statutory ban against same-sex marriage was unconstitutional under state constitution.
• Nov. 2008: 52.30 percent of California voters voted in favor of Proposition 8, a constitutional ban on same-sex marriage.
• May 2009: In Strauss v. Horton,10 the California Supreme Court upheld the constitutional ban.
• In Perry v. Scwartzenegger,11 the District Court for the Northern District of California (2010) and Court of Appeals for the Ninth Circuit (2012) held the ban was unconstitutional.
• Dec. 2012: United States Supreme Court granted a writ of certiorari to hear the case, renamed Hollingsworth v. Perry.
Yes, recognizes same-sex marriage, if entered into in California between June 16, 2008, and Nov. 5, 2008.12
Yes, recognizes registered domestic partnerships. (Cal. Fam. Code §297)
Yes, recognizes same-sex marriages from other jurisdictions if entered into before Nov. 5, 2008.13 (Cal. Fam. Code §308(b)); (Cal. Fam. Code §308(c))
• Spouses in recognized same-sex marriages - required to file as:
- married/registered domestic partnership (RDP) filing jointly or
- married/RDP filing separately.
• Beginning in 2010, spouses in valid same-sex marriages outside California - required to file as:
- married/RDP filing jointly or
- married/RDP filing separately.
• A same-sex spouse may file as head of household if he/she maintains the main home for his/her child and is considered “unmarried.”
• Beginning in 2007, partners in registered domestic partnerships are required to use the same filing statuses available to married couples. (Tax Information for Same-Sex Married Couples (FTB Pub 776))
Colorado Bans same-sex marriage. (Colo. Const. art. II, §31 (1876)) No.14 (Colo. Rev. Stat. §14-2-104(1)(b)) No. (Colo. Rev. Stat. §14-2-104(2)) Single; head of household.
Connecticut   Yes.15 (Conn. Gen. Stat. §46b-20); (Conn. Gen. Stat. §46b-38rr) Yes. (Conn. Gen. Stat. §46b-28b) Joint, single, head of household. (Announcement AN 2012(1), 12/28/11)
Delaware   No recognition of same-sex marriages. (Del. Code Ann. tit. 13, §101(a))
However, recognizes civil unions between same-sex couples. (Del. Code Ann. tit. 13, §201)
No recognition of same-sex marriage. (Del. Code Ann. tit. 13, §101(d)) However, recognizes as a civil union any legal union entered into between two person of the same-sex in other jurisdictions. (Del. Code Ann. tit. 13, §213) • Beginning in 2012, partners of civil unions must file as:
- joint
- married/civil union & filing separate
or
- married/civil union & filing combined separate.
• May not file as single or head of household. (FAQs: Civil Union Tax Rules in Delaware)
District of Columbia   Yes. (D.C. Code Ann. §46-401); (D.C. Code Ann. §32-702) Yes. (D.C. Code Ann. §46-405.01) • Beginning in 2007, domestic partners were allowed to file jointly or married filing separately.
• Beginning in 2009, same-sex spouses validly married in other jurisdiction may file jointly or married filing separately. (News Release 3/4/10; News Release 2/7/08 citing Domestic Partner Tax Filing Fact Sheet)
Florida Bans same-sex marriage. (Fla. Const. art. I, §27 (1968)) No. (Fla. Stat. §741.212) No. (Fla. Stat. §741.212) Single; head of household.
Georgia Bans same-sex marriage. (Ga. Const. art. I, §4 (1983)) No. (Ga. Code Ann. §19-3-3.1) No. (Ga. Code Ann. §19-3-3.1) Single; head of household.
Hawaii Bans same-sex marriage.16 (Haw. Const. art. I, §23 (1959)) No.17 (Haw. Rev. Stat. §572-1) No. (Haw. Rev. Stat. §572-3) Single; head of household.
Idaho Bans same-sex marriage. (Idaho Const. art. III, §28 (1890)) No.18 (Idaho Code §32-201) No. (Idaho Code §32-209) Single; head of household.
Illinois   No recognition of same-sex marriage. (750 ILCS 5/201, 5/212) However, does recognize civil unions between same-sex or opposite-sex couples. (750 ILCS 75/10) Yes.19 (750 ILCS 5/213) • For tax year 2011, partners of civil unions are required to use the filing status:
- married filing jointly or
- married filing separately.
• May not file as single or head of household. (Information Bulletin FY 2012-05, 1/12)
Indiana   No. (Ind. Code Ann. §31-11-1-1) No. (Ind. Code Ann. §31-11-1-1) Single; head of household.
Iowa   No by statute, yes by court opinion.20 (Iowa Code Ann. §595.2) Yes.21 (Iowa Code Ann. §595.20) • Beginning in 2009, same-sex spouses must file as:
- married filing jointly
- married filing separately on an Iowa return
or
- married filing separately on a combined Iowa return.
• May not file as head of household. (Iowa Tax Treatment of Same-Sex Marriages, 2009)
Kansas Bans same-sex marriage. (Kan. Const. art. XV, §16 (1859)) No.22 (Kan. Stat. Ann. §23-2501) No. (Kan. Stat. Ann. §23-2508) Single; head of household.
Kentucky Bans same-sex marriage. (Ky. Const. pt. 2, §223A (1891)) No. (Ky. Rev. Stat. Ann. §§402.005, 402.020) No. (Ky. Rev. Stat. Ann. §§402.040, 402.045) Single; head of household.
Louisiana Bans same-sex marriage. (La. Const. art. 12, §15 (1974)) No. (La. Civ. Code Ann. art. 86) No. (La. Civ. Code Ann. art. 3520) Single; head of household.
Maine   Yes.23 (Me. Rev. Stat. Ann. §650-A) Yes.24 (Me. Rev. Stat. Ann. §650-B) • If married on the last day of 2012, same-sex spouses must file as:
- married filing jointly or
- married filing separately.
(Tax Alert Dec. 2012)
Maryland   Yes.25 Yes.26 Single; head of household.27 (Frequently Asked Questions about Income Taxes: Can same-sex couples who are legally married in another state file a joint return tax return in Maryland?)
Massachusetts   Yes.28 Yes.29 • Same-sex spouses must file as:
- married filing jointly or
- married filing separately
• May not file as head of household. (Technical Information Release TIR 04-17, 7/7/04)
Michigan Bans same-sex marriage. (Mich. Const. art. I, §25 (1963)) No. (Mich. Comp. Laws §551.1) No. (Mich. Comp. Laws §551.271) Single; head of household.
Minnesota Minnesota voters did not vote in favor of a constitutional ban. No. (Minn. Stat. §§517.01, 517.03(a)(4)) No. (Minn. Stat. §518.01) Single; head of household.
Mississippi Bans same-sex marriage. (Miss. Const. art. 14, §263A (1890)) No. (Miss. Code Ann. §93-1-1) No. (Miss. Code Ann. §93-1-3) Single; head of household.
Missouri Bans same-sex marriage. (Mo. Const. art. I, §33 (1945)) No. (Mo. Rev. Stat. §§451.010, 451.022) No. (Mo. Rev. Stat. §451.022) Single; head of household.
Montana Bans same-sex marriage. (Mont. Const. art. XIII, §7 (1889)) No. (Mont. Code Ann. §§40-1-103, 40-1-401) No. (Mont. Code Ann. §40-1-401) Single; head of household.
Nebraska Bans same-sex marriages. (Neb. Const. art. I, §29 (1875)) No.30 (Neb. Rev. Stat. §42-101) No.31 (Neb. Rev. Stat. §42-117) Single; head of household.
Nevada Bans same-sex marriage. (Nev. Const. art. 1, §21 (1864)) No recognition of same-sex marriage.
However, recognizes domestic partnerships. (Nev. Rev. Stat. §§122.010, 122.020); (Nev. Rev. Stat. §§ 122A.040, 122A.510)
Yes.32 (Nev. Rev. Stat. §122A.500) • Does not have a personal income tax.
• Because Nevada is a community property state, once the domestic partnership is registered, each partner's income is 1/2 of the entire couple's income. Thus, this will be the amount reported on each partner's federal return, even though they would still be filing as single or head of household. (IRS Publication 555 (March 2012))
New Hampshire   Yes.33 (N.H. Rev. Stat. Ann. §457:1-a) Yes. (N.H. Rev. Stat. Ann. §457:3) • Does not have a personal income tax, but has a number of other taxes, such as individual's interest and dividends income, inheritance, business taxes, and consumer excise taxes.
• For tax year 2008, partners of a civil union were able to use a married filing status. (TIR 2008-001, 3/408)
• As of Jan. 1, 2010, same-sex marriages replaced civil unions and as of Jan. 1, 2011, all civil unions in the state became legal marriages. (TIR 2010-010, 11/15/10)
New Jersey   Yes.34 (N.J. Rev. Stat. §§37:1-29, 37:1-30) Yes. (N.J. Rev. Stat. §37:1-34) • Beginning in 2007, civil union couples must file as:
- married/civil union (CU) couple filing jointly
- married/CU couple filing separately
- qualifying widow(er)/surviving CU partner
or
- qualifying head of household
• May not file as single. (Bulletin GIT-4)
New Mexico   Unclear.35 (N.M. Stat. Ann. §40-1-1) Probably.36 (N.M. Stat. Ann. §40-1-4) Single; head of household.
New York   Yes. (N.Y. Dom. Law §10) Yes. (Marriage Equality in New York City: Questions and Answers for Same-Sex Couples and All Those Who Wish to Marry Here) • Beginning in 2011, same-sex spouses must file as:
- married filing jointly or
- married filing separately.
• They are not allowed to amend a prior year return using a married filing status.
• Same-sex couples married in another state prior to July 24, 2011 may not use a married filing status prior to tax year 2011. (TSB-M-11(8)C)
North Carolina Bans same-sex marriage. (N.C. Const. art. XIV, §6 (1971)) No.37 (N.C. Gen. Stat. §51-1.2) No. (N.C. Gen. Stat. §51-1.2) Single; head of household.
North Dakota Bans same-sex marriage. (N.D. Const. art. XI, §28 (1889)) No. (N.D. Cent. Code §14-03-01) No. (N.D. Cent. Code §14-03-08) Single; head of household.
Ohio Bans same-sex marriage. (Ohio Const. art. 15, §11 (1851)) No.38 (Ohio Rev. Code Ann. §3101.01)
No. (Ohio Rev. Code Ann. §3101.01) Single; head of household.
Oklahoma Bans same-sex marriage. (Okla. Const. art. 2, §35 (1907)) No.39 (Okla. Stat. Ann. tit. 43, §3) No. (Okla. Stat. Ann. tit. 43, §3.1) Single; head of household.
Oregon Bans same-sex marriage. (Or. Const. art. XV, §5a (1857)) Yes, only domestic partnerships.40 (Or. Rev. Stat. §§106.010 and 310) Yes, only domestic partnerships. (Or. Rev. Stat. §106.340) • Beginning in 2008, registered domestic partners must file as:
- registered domestic partners filing jointly or
- registered domestic partners filing separately.
• May not file as single. (Registered Domestic Partners in Oregon: Filing your Oregon income tax return)
Pennsylvania   No. (Pa. Stat. §§1102, 1704) No. (Pa Stat. §1704) Single; head of household.
Rhode Island   Yes. (R.I. Gen. Laws §15-3.1-1) Yes.41 (R.I. Gen. Laws §15-3.1-8); (Executive Order 12-02) Single; head of household.42
South Carolina Bans same-sex marriage. (S.C. Const. art. XVII, §15 (1895)) No. (S.C. Code Ann. §20-1-15) No.43 (S.C. Code Ann. §20-1-15) Single; head of household.
South Dakota Bans same-sex marriage. (S.D. Const. art. 21, §9 (1889)) No.44 (S.D. Codified Laws Ann. §25-1-1) No. (S.D. Codified Laws Ann. §25-1-38) Single; head of household.
Tennessee Bans same-sex marriage. (Tenn. Const. art. XI, §18 (1870)) No. (Tenn. Code Ann. §36-3-113) No. (Tenn. Code Ann. §36-3-113) Single; head of household.
Texas Bans same-sex marriage. (Tex. Const. art. I, §32 (1876)) No. (Tex. Fam. Code Ann. §2.001) No. (Tex. Fam. Code Ann. §1.103) Single; head of household.
Utah Bans same-sex marriage. (Utah Const. art. I, §29 (1895)) No. (Utah Code Ann. §§30-1-2, 30-1-4.1) No. (Utah Code Ann. §§30-1-4, 30-1-4.1) Single; head of household.
Vermont   Yes. (Vt. Stat. Ann. tit. 15, §8; Vt. Stat. Ann. tit. 15, §1202) Yes. (Vt. Stat. Ann. tit. 15, §8; Vt. Stat. Ann. tit. 15, §1204) • Same-sex spouses and civil union partners must file as:
- civil union/married filing jointly or
- civil union/married filing separately.
• May not file as single.
(Technical Bulletin TB-55, 10/7/10)
Virginia Bans same-sex marriage. (Va. Const. art. I, §15A (1971)) No. (Va. Code Ann. §20-45.2) No. (Va. Code Ann. §20-45.3) Single; head of household.
Washington   Yes. (Wash. Rev. Code §26.04.010) Yes.45 (Wash. Rev. Code §26.04.020) Does not have a personal income tax.
West Virginia   No.46 (W.Va. Code §48-2-401) No. (W.Va. Code §48-2-603) Single; head of household.
Wisconsin Bans same-sex marriage. (Wis. Const. art. XIII, §13 (1848)) No recognition of same-sex marriage.47 (Wis. Stat. §765.01)
Allows domestic partnerships. (Wis. Stat. §770.05)
No. (Wis. Stat. §765.04) Single; head of household.
Wyoming   No. (Wyo. Stat. §20-1-101) Unclear.48 (Wyo. Stat. §20-1-111) Does not have a personal income tax.

1 184 L. Ed. 2d 526 ( 2012).  

2 184 L. Ed. 2d 526 ( 2012).

3Baehr v. Mike, 852 P.2d 44 ( 1993), reconsidered and clarified, 852 P.2d 74 ( 1993) (three same-sex couples argued Hawaii's prohibition of same-sex marriage violated the State constitution).

4 Article. IV, Section. 1, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

5 Defense of Marriage Act 5/96 H.R. 3396 Summary/Analysis.

6 The U.S. General Accounting Office, Defense of Marriage Act, GAO/OGC- 97-16 (Washington, D.C.; Jan. 31, 1997).

7 Examples of same-sex couples who could benefit from filing a protective claim include surviving same-sex spouses, who had to pay federal estate taxes on inherited sums from deceased partners because federal law did not recognize them as surviving spouses. These surviving spouses may be entitled to the unlimited marital deduction with no federal estate tax owed, resulting in a refund. In addition, same-sex couples, if recognized as married, would be entitled to file joint federal tax returns combining their incomes and deductions, and taking advantage of lower tax rates and certain credits, which also may result in substantially lower taxes.

8 A qualifying relative is not a qualifying child; his gross income must be less than $3,900 for 2013 year ($3,800 for 2012); he must meet a certain relationship test, and must have greater than one half of his total support for the year supplied by the taxpayer.

9 183 P.3d 384 (Cal. 2008).

10 207 P.3d 48 (Cal. 2009).

11 704 F.Supp.2d 921 (N.D. Cal. 2010), aff'd sub nom.Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), cert. granted sub nom.Hollingsworth v. Perry, no. 12-144 (2012).

12 Does not expressly prohibit, but treated as invalid because a marriage is a personal relation arising out of a civil contract between a man and a woman. (Cal. Fam. Code §300) See alsoStrauss v. Horton, 207 P.3d 48 (Cal. 2009).

13 People who entered into same-sex marriages in other jurisdictions on or after Nov. 5, 2008, are entitled to receive same benefits as spouses with the sole exception of the designation of “marriage.”

14 Does not expressly prohibit, but treated as invalid because a valid marriage is only between one man and one woman.

15 Marriage is defined as the legal union of two persons. As of Oct. 1, 2010, all civil unions converted to marriages by operation of law.

16 The legislature shall have the power to reserve marriage to opposite-sex couples.

17 Does not expressly prohibit, but treated as invalid because a marriage contract shall be only between a man and a woman.

18 Does not expressly prohibit, but treated as invalid because a marriage is a personal relation arising out of a civil contract between a man and a woman.

19 Treats as civil unions same-sex unions from other jurisdictions.

20 Although the statute treats same-sex marriage as invalid, the Supreme Court of Iowa in Varnum v. Brien,763 N.W.2d 862 (Iowa 2009) ruled the statutory ban violated the equal protection of Iowa's constitution.

21Id.  

22 Does not expressly prohibit, but treats as invalid because a marriage is a civil contract between two parties of the opposite sex.

23 An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom, providing that marriage is a legally recognized union between two people, was signed by the governor on May 6, 2009. By referendum, 51.5 percent of Maine voters voted in favor of the law, effective Dec. 29, 2012.

24Id.  

25 The Civil Marriage Protection Act, providing that a marriage is between two individuals, was signed by the governor on March 1, 2012. By referendum, 52.4 percent of Maryland voters voted in favor of the law, effective Jan. 1, 2013.

26 In May, 2012, the Court of Appeals of Maryland ruled same-sex marriages from other states must be recognized as valid in Port v. Cowan, 44 A.3d 970 (Md. 2012).

27 Maryland has not changed its tax laws to correspond to the recently enacted law.

28 In the 2003, Goodridge v. Massachusetts Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003) held it was unconstitutional to allow only opposite-sex couples to marry.

29Hunter v. Rose, 463 Mass. 488 (Mass. 2012); Elia-Warnken v. Elia, 463 Mass. 29 (Mass. 2012).

30 Although the statute states that marriage is a contract between consenting parties, the constitutional ban invalidates same-sex marriage.

31 Although the state recognizes valid marriages from other jurisdictions, the constitutional ban invalidates same-sex marriage.

32 Recognizes as a domestic partnership any legal union between persons from other jurisdictions.

33 Allows same-sex marriage, statutes relating to domestic unions were repealed.

34 Civil unions were legalized in December 2006, effective Feb. 19, 2007.

35 Marriage is defined as a valid contract for consenting parties. However, in 2004, 66 marriage licenses issued to same-sex couples were later invalidated that same day by the New Mexico Atty. Gen. Patricia Madrid.

36 New Mexico's statute recognizes valid marriages from other jurisdictions. In 2011, Atty. Gen. Gary King stated, “While we cannot predict how a New Mexico court would rule on this issue, after review of the law in this area, it is our opinion that a same-sex marriage that is valid under the law of the country or state where it was consummated would likewise be found valid in New Mexico.” http://www.scribd.com/doc/46294643/4-Jan-11-Rep-Al-Park-Opinion-11-01-1.

37 Prohibited, however, a number of cities and counties allow domestic partnerships.

38 Prohibited, however, some cities allow domestic partnerships.

39 Does not expressly prohibit, but treated as invalid because an unmarried person is capable of contracting and consenting to marriage with a person of the opposite sex.

40 Does not expressly prohibit, but treated as invalid because a marriage is a civil contract between a male and a female.

41 Executive Order 12-02 stated Rhode Island would recognize same-sex marriages, civil unions, or registered domestic partnerships valid in other jurisdictions.

42 Tax Administrator ruled the Rhode Island marital deduction is allowable for property passing from decedent to his/her in state civil union partner or out of state same-sex surviving spouse. (Declaratory Ruling 2012-02)

43 Although the state recognizes valid marriages from other jurisdictions, the constitutional ban invalidates same-sex marriage.

44 Does not expressly prohibit, but treated as invalid because a marriage is a personal relationship between a man and a woman arising out of a civil contract.

45 Treats valid same-sex legal unions from other jurisdictions as domestic partnerships.

46 Does not expressly prohibit, but treated as invalid because solemnization is a formal act by which a man and a woman contract to marriage and assume the status of husband and wife.

47 Does not expressly prohibit, but treated as invalid because marriage is a legal relationship between two equal persons, a husband and wife.

48 Unclear because recognizes valid marriages from other jurisdictions.