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How nine opinions could sway California estate plans rules

The subject of gay marriage drew a negative reaction from most U.S. residents in polls taken a decade ago. At the time, Pew Research Center reported a 58 percent opposition to same-sex marriage. A new survey shows a remarkable change in society. The gay marriage approval rate shot up to 49 percent.

The U.S. Supreme Court recently heard arguments on two cases, one of them concerning California’s Proposition 8 law which limits legal marriage to a male-female union. The justices’ rulings in June could impact pensions, taxes, real estate ownership, insurances, health care, wills and estate administration for gay couples.

The acceptance or recognition of same-gender marriage remains the option of states. Nine states permit gay marriages. Others have legalized civil unions or have laws that recognize existing same-sex marriages. Many states still forbid and refuse to acknowledge gay marriage.

The dissolution of the Defense of Marriage Act would usher in wide changes in federal laws with implications for estate planners, heirs and beneficiaries. DOMA, like the California statute, restricts marriage to an opposite-gender state.

Under DOMA, gay spouses cannot take advantage of estate tax deductions or other legal and federal benefits. A Supreme Court ruling that declares DOMA unconstitutional would give same-sex spouses the same inheritance rights as heterosexual spouses. Right now, many gay couples use insurance or some other financial backup plan to make up for lost heir and beneficiary assets.

Many estate planning observers who heard the Supreme Court debate on gay rights believe DOMA’s chances for survival are short-lived. Some analysts also believe the Proposition 8 case will result in a compromise ruling that throws the issue back to state voters.

Some tax professionals are advising married gay couples to request filing extensions and prepare amendments for past, single-status tax returns. Estate planning attorneys are cautiously waiting for potential changes that would have extensive impact on clients and the ones they love.

Source: investmentnews.com, “Gay marriage would shake up benefits game,” Liz Skinner, March 31, 2013

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