The subject of gay marriage is a controversial one to say the least. Same-sex unions are legal in some of the states, and others allow for civil unions. Because of this the unions that many gay couples have entered into are indeed recognized in the states that they live in.
This certainly provides some basic protections when it comes to estate planning and incapacity planning. But at the same time, all married couples should have a professionally prepared estate plan in place regardless of their sexual orientation.
The above having been stated there are some additional concerns for more affluent same-sex couples. On the federal level the estate tax exclusion is $5.25 million, and the maximum rate is 40% this year.
This $5.25 million exclusion does not apply to married people. There is an unlimited marital estate tax exemption.
Because of the Defense of Marriage Act the federal government doesn’t recognize marriages between people of the same sex. So even if you were legally married in your state you could not use the unlimited federal marital exemption.
The same is true of portability. Heterosexual married couples can utilize the portability option to allow the surviving spouse to use the exclusion that was due to his or her deceased spouse. Gay couples, whether they are married or not, may not take advantage of portability.
Because of the lack of recognition on the federal level very successful same-sex couples must certainly be proactive about implementing tax efficiency strategies when they are planning on transferring resources to one another.