Estate Planning Implications of Same-Sex Marriage

Jenifer Schembri - Bradenton Attorney

Jenifer S. Schembri, Estate Planning, Board Certified in Tax Law, The Florida Bar

The United States Supreme Court ruled in June, 2015, that any ban on same-sex marriage is unconstitutional, and as such shifted the landscape of estate planning for same-sex couples.  A same-sex couple that is now legally married, i.e., pursuant to a properly issued marriage certificate, can now take advantage of the same planning opportunities that have been available to opposite-sex couples for decades, including:

  1. Unlimited Marital Deduction – Assets that are transferred to a spouse during lifetime or to a surviving spouse at death are eligible for the unlimited marital deduction for same-sex spouses.
  2. Portability of Estate Tax Exemptions – To the extent that the first spouse to die does not utilize their estate tax exemption, they can be passed to the surviving spouse.
  3. IRA spousal rollovers – which allow the surviving spouse to delay IRA required minimum distributions until the surviving spouse reaches age 70½, are now available to same-sex spouses.
  4. Amending prior income, estate and gift tax returns – Same-sex couples who are legally married may want to review and consider amending prior returns to the extent there would be an tax benefit to the federal recognition of their marriage.
  5. Non-citizen spouses may want to seek permanent residency or becoming citizens if they are married to a U.S. Citizen.
  6. Tenants by the Entireties – Florida law provides that a creditor of one spouse cannot access assets owned by spouses as “tenants by the entireties” and therefore same-sex couples may want to explore this form of ownership.
  7. Joint Revocable Trusts – these estate planning vehicles are now available for same-sex couples.

There are also a few things for same-sex couples to pay attention to if they are legally married, or plan to be legally married.

For instance, Elective Share – Florida allows a surviving spouse to elect to receive roughly one-third of a deceased spouse’s estate, and this provision will now apply to same-sex couples.

If you have any questions, please feel free to contact our Estate Planning department.  To reach Jenifer Schembri, call 941.748.0100 or email