Author: Denise Martin
At present, the District of Columbia and nine states, including Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington have legalized same-sex marriage and will issue marriage licenses to same-sex couples.[1] On March 1, 2012, Maryland Governor Martin O’Malley signed the Civil Marriage Protection Act into law, providing that same-sex couples can obtain a civil marriage license. Maryland voters upheld the law on the November 6, 2012 election ballot (Question 6), and the law goes into effect beginning January 1, 2013.
There are numerous legal implications related to the legalization of same-sex marriage in Maryland, several of which will be described in this post. For estate planning purposes, a member of a same-sex married couple will be considered a spouse in the event their partner dies, such that they will be entitled to protections and distribution under the Estates and Trusts Article of the Maryland Code. This is significant, in part, because many people never create a will. Now, married same-sex couples will receive the same automatic inheritance rights provided to heterosexual married couples through intestate succession under the Maryland Code. A surviving same-sex spouse will also now be entitled to claim their elective statutory share of the deceased spouse’s net estate if they are unhappy with what was left to them under the deceased spouse’s last will. A married same-sex couple will be able to title their home as a tenancy by the entirety, which provides joint ownership of title to a married couple. There are various rights and protections associated with this type of ownership, such as the right of survivorship upon the death of one of the spouses. Depending on the employer and type of health insurance offered, married same-sex couples may be able to obtain health coverage for their spouse.
There are a number of tax implications with regard to Maryland’s legalization of same-sex marriage. The marital deduction for the Maryland estate tax will now allow same-sex spouses to postpone state estate taxes until the passing of the surviving spouse. One important tax issue is the fact that couples in jurisdictions permitting same-sex marriage are governed by two inconsistent regimes affecting their income tax filing. Currently, the Federal Defense of Marriage Act (DOMA) defines a marriage as a legal union between one man and one woman. In addition, the Internal Revenue Code § 6013(a) authorizes only a “husband and wife” to file jointly. Consequently, same-sex married couples must file separate federal income tax returns, even if they reside in a state that recognizes same-sex marriage. It is unclear at present whether same-sex married couples in Maryland will be able to file joint state tax returns for calendar year 2013. The Code of Maryland Regulations 03.04.02.02 currently provides that each resident shall use the same filing status on his or her state income tax return as on their federal income tax return. Consequently, unless the Regulations are amended, same-sex married couples in Maryland may not be able to file a joint state tax return.[2]
[1] Readers should be aware that the law surrounding same-sex marriage is developing so rapidly that this article, and others like it, may quickly become out-of-date. Note that it is likely that the Supreme Court will address issues related to same-sex marriage in the near future.
[2] Note that Maryland, like most other states, computes income taxes based upon the federal adjusted gross income (AGI). If the Maryland Regulations are modified to allow residents to use a filing status different from their federal return, a same-sex married couple will need to prepare a “dummy” joint federal return in order to calculate the AGI for the joint state return.
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