Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, September 27, 2011

Tax Treatment of RDPs and Same-Sex Spouses in Community Property States

Gaymarriage Forbes recently published an article that discusses questions and answers on the tax treatment of RDPs and same-sex spouses in community property states. The author uses his hypothetical clients, Robin and Terry, to discuss some of the nineteen questions and answers. The portion of the article that addresses Question Two is posted below, in full:

Don’t Forget About the Constitution

 Q-2: Can registered domestic partners or same-sex spouses whose marriage is recognized under state law file federal tax returns using a married filing jointly or married filing separately status?

A-2: No. Registered domestic partners cannot file using a married filing separately or jointly filing status, because they are not spouses as defined by federal law. Likewise, same-sex partners who are married under state law may not file using a married filing separately or jointly filing status because federal law does not treat same-sex partners as spouses.

I don’t entirely agree with the “likewise”. It is understandable that the IRS would put it that way, but the answer is debatable. Gill v. OPM holds that Section 3 of DOMA is unconstitutional. DOJ has determined that the constitutionality of Section 3 of DOMA is indefensible. I believe that this gives same sex married couples (although not RDP’s) a reasonable basis for filing jointly. At the very least, if joint status would be advantageous, they should be protecting their rights for open years by filing timely refund claims. As RDP’s, Robin and Terry do not have skin in this particular game. If they had married in 2008, they might.

Peter J. Reilly, Registered Domestic Partners and Same-Sex Spouses in California—More Questions Than Answers, Forbes, Sep. 24, 2011.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this article to my attention.


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