Courts across the United States have only just begun to explore the legal and tax ramifications of same-sex divorce, which became possible when marriage equality was recognized by the Courts a few years ago. Many, but not all, same-sex couples can take advantage of the same tax benefits as other married couples. Chapter 19 of my book explores the tax problems that may arise in a same-sex relationship. In many ways, same-sex divorce is treated the same as other divorces, but there are some situations where the old rules do not apply.
Same-sex spouses who are legally married may transfer money and property between themselves, or into joint names, during their lifetimes or upon the death of one of them, free of the federal estate and gift taxes, by claiming the unlimited marital deductions afforded by § 2056 and § 2523 of the Tax Code, just like other married couples. The right of same-sex couples to claim the marital deduction was first established by the U.S. Supreme Court in United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675 (2013), and reaffirmed in Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2071 (2015).