Same-sex Marriage In Florida, Where Are We After Windsor

Written by Fletcher H. Rush | frush@farr.com
Attorney Fletcher Rush

Fletcher H. Rush, Attorney
Fletcher practices in the areas of wills, estate planning, trust administration and tax planning.

In late June, the United States Supreme Court held the Defense of Marriage Act definition of marriage unconstitutional. Further, the Court said regulating marriage is the domain of the individual states. These holdings have quite an impact in the tax world as they afford same sex couples an opportunity to jointly file returns and receive marital deductions, among other benefits.

Here in Florida, our Constitution defines marriage as the union of a man and a woman and “no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.” Clearly, Florida does not allow same-sex marriage but in the wake of the Supreme Court’s opinion, the idea of “recognition” has fallen under substantial scrutiny.

The IRS recently issued Revenue Ruling 2013-17 which defines the terms “spouse,” “husband,” and “wife” as including the same sex. This Ruling explains that the jurisdiction in which the marriage was established (i.e. the place of the wedding ceremony) determines the couple’s entitlement to federal benefits. Based on this ruling, it appears that Florida residents of the same sex may travel to a jurisdiction that allows same-sex marriages, legally marry each other, return to Florida, and be recognized as married for federal tax purposes. This is a broad overview of a complex and changing area of the law and taxpayers in a same-sex couple should talk to their tax advisors about how these changes affect you.