Tax regulations to be amended to reflect Obergefell and Windsor decisions

By Sally P. Schreiber, J.D.

Following the U.S. Supreme Court’s recent decisions that the federal government must recognize and states must allow same-sex marriages (Windsor, 133 S. Ct. 2675 (2013); Obergefell v. Hodges, 135 S. Ct. 2584 (2015)), the IRS on Wednesday issued proposed regulations under Sec. 7701 amending the definitions of “spouse” and “husband and wife” to reflect those decisions (REG-148998-13). 

Under the proposed regulations, for federal tax purposes, the terms “spouse,” “husband,” and “wife” are defined as an individual lawfully married to another individual. “Husband and wife” is defined as two individuals lawfully married to each other. These definitions apply regardless of the taxpayers’ sex. The IRS is generally already interpreting these terms under Rev. Rul. 2013-17 to include same-sex spouses. According to the IRS, there are over 200 provisions in the Code and regulations that include the terms “spouse,” “marriage,” “husband and wife,” “husband,” and “wife.”

The proposed rules would also provide that a marriage of two individuals is recognized for federal tax purposes if the marriage would be recognized by any state, possession, or territory of the United States. According to the preamble, this means that whether a marriage in a foreign jurisdiction would be recognized depends on whether it is recognized in at least one state, possession, or territory.

The rules make it clear that taxpayers who are not married but have entered into registered domestic partnerships, civil unions, or similar relationships will not be treated as married, which the IRS says will permit taxpayers who choose not to be married to have that choice respected for tax and other purposes (such as for Social Security benefits).

The regulations will apply after they are published as final in the Federal Register. When they are finalized, they would obsolete Rev. Rul. 2013-17.

Sally P. Schreiber (sschreiber@aicpa.org) is a JofA senior editor.

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