Gay Marriage: Impact on Real Estate

July 3, 2013

Married same-sex couples in 13 states and Washington, D.C., are now or soon will be eligible for more than 1,100 federal benefits and protections denied to them under the Clinton-era Defense of Marriage Act. A key provision of the federal law, which withheld benefits from gay couples who had been lawfully married in those states that permit it, was struck down last week by the Supreme Court. And though property rights are set at the state level, the ruling has bearing on a number of real estate–related matters that involve federal law.

The ruling may influence how couples decide to hold title on a property. It will also affect the calculation of estate taxes owed when a spouse dies and how much capital gain is exempt from taxes in the sale of a home that is owned in the name of only one member of the couple.

For real estate practitioners, “understanding the status of [your clients’] relationship is critical if you are in a jurisdiction that recognizes marriage” for gay couples, says Los Angeles attorney Wendy E. Hartmann, who specializes in tax and estate planning for same-sex couples. Practitioners should, however, encourage couples to obtain legal advice on such title and tax matters from an attorney, she noted.

While the dismantling of DOMA provides clear-cut benefits for married gay couples who reside in the states they were married in, it creates significant ambiguities in other situations. For example, the immediate future is murky for partners who were legally married in one state but move to a state that does not recognize their union. For now, these people are caught in a confusing tangle of laws.

—Wendy Cole, REALTOR® Magazine

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Same-Sex Marriage Ruling: What It Means for Real Estate