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Pre-Marriage Considerations for Same-Sex Couples

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The U.S. Supreme Court today issued a ruling establishing same-sex marriage as a legal right in all 50 states (Obergefell v. Hodges). The decision determined that the Fourteenth Amendment requires all states to license a marriage between two people of the same sex.

In light of this ruling, Marcum's Modern Family & LGBT Services experts recommend that same-sex couples contemplating marriage give careful consideration to the following:

  • Planning is paramount. Couples that have been together for many years, particularly those who cohabitate, need to understand and plan for the financial impact of marriage.
  • Pre-nuptial agreements should take into consideration any existing co-habitation agreements executed before marriage. Determine how you will categorize assets acquired prior to marriage which are in one person's name alone. 
  • Recognize losses from any depreciated assets, and keep the assets in the family, by selling them to the other partner before getting married. 
  • Once married, couples may want the protection afforded by re-titling real estate assets from tenants in common or joint tenancy to tenants by the entirety.
  • Review W-2's closely. Many employers still include the cost of a same-sex spouse's health insurance in employee income statements.
  • Adoption tax credits are not available when adopting a spouse's children. Couples may want to complete adoption before marrying.
  • Medical expenses for assisted reproduction may be deductible.
  • Many countries do not recognize same-sex marriage, and discrimination persists in many parts of the U.S. Carry important legal documents on your smart phone or flash drive to avoid challenges to your legal right to act on behalf of your spouse or your children, should the need arise. Important documents include Powers of Attorney, Health Care Proxies and Living Wills.

Marcum is the thought leader in the specialty area of tax compliance and consulting services for high net worth modern families, same-sex couples and LGBT individuals. The Firm's specialists have over 20 years of experience navigating the complex, hyper-local and shifting tax landscape for the modern family in America. In 2012, Marcum became the first national accounting firm to establish a tax and estate planning practice dedicated to the complex rules faced by people who don't fit traditional definitions.

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