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Surviving partner inheritance tax liability in same-sex marriage

Although same-sex marriages are legal in California, some laws relating to marriage, divorce, estate taxes and more have not been adjusted to accommodate same-sex couples on a state-by-state basis. As such, the fight for marriage equality continues for those in a same-sex marriage. When the wife of a female teacher died, the woman was surprised to learn that she was not recognized as the wife of the deceased, despite having been married in another state.

The same-sex couple was married legally in 2012 after a relationship of 14 years. Tragically, one of the partners in the marriage was diagnosed with cancer soon after the marriage and passed away in 2012. Each of the partners had their wills drawn up, and when the teacher filed her inheritance tax return after some months, stating that she was the wife of the deceased, the widow learned that she was liable for inheritance tax.

The wife was not recognized as the surviving spouse by state law and was charged almost $11,000 in inheritance tax. She filed a lawsuit claiming discrimination against her status as the surviving partner of a same-sex marriage. She claimed that, had she been in a heterosexual marriage, she would not have had to pay inheritance tax.

Even in California, same-sex couples may have to face such legal obstacles. In the meantime, they may want to explore options to accommodate their specific needs in protecting their assets. One of the legal options to investigate may be a living trust which can be revoked or updated at any time while protecting the interests of both partners in a same-sex marriage.

Source: NBC Philadelphia, "Widow Says Inheritance Tax Discriminates Against Same-Sex Couples", , May 2, 2014

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