LGBTQ couples who choose to celebrate their commitment by getting married are now entitled to many of the same rights and protections as opposite-sex couples, which has opened the door to new financial planning opportunities.
Indeed, thanks to landmark Supreme Court rulings in 2013 and 2015 that established marriage equality, LGBTQ spouses can now:
- Claim Social Security benefits based on their spouse’s work history.
- Leave unlimited assets to each other without triggering federal estate taxes.
- Provide coverage for each other through their workplace health insurance plan.
- Enjoy the same property owner survivorship rights.
As you build your future hand-in-hand, it’s worth taking a moment to explore some of the marital benefits that have always been available to opposite-sex couples, so you don’t leave any on the table.
“It’s really important to seek out the education you need,” said Cathy Sakimura, family law director for the National Center for Lesbian Rights, in an interview. “Our community doesn’t have a long history of knowing what it means financially or otherwise to be married. It’s a huge new avenue of benefits and responsibilities.”
While you explore possibilities, keep in mind that laws and policies regarding LGBTQ antidiscrimination rights on the state level still vary widely. In many cases, same-sex couples may want to consider consulting a financial professional familiar with LGBTQ issues in their area to map out a plan.
Spousal and survivors benefits from Social Security offer one of the most effective ways to maximize your income during retirement.
Married people who are at least age 62 and are eligible to receive Social Security can claim benefits based on either their own earnings record, or 50 percent of their spouse’s Social Security benefit as calculated at their spouse’s full retirement age, whichever is greater.
Social Security can also potentially provide for your family in the event of a death, divorce, or disability.
If you die, for example, your widowed spouse would be eligible for Social Security survivors benefits as early as age 60 based on your earnings, if you earned enough Social Security credits before you died.
A person may also be eligible for benefits through an ex-spouse’s record if they were married for at least 10 years, the person seeking benefits did not remarry before age 60, and is at least age 62.1
Similarly, your unmarried children who are under age 18 may be eligible for Social Security survivor benefits if you die when they are still young. Individuals can collect benefits at any age if they were disabled before age 22 and remain disabled.2
In some cases, your stepchildren, grandchildren, step-grandchildren, or adopted children may receive benefits, as well.
“I think some LGBT couples are just now starting to realize that they might be eligible for more benefits,” said Rebecca Levin, an attorney with Jerner & Palmer, P.C., in Philadelphia, Pennsylvania, who works closely with the LGBTQ community. “We’re really starting to see that where Social Security benefits are concerned.”
Married couples can opt to split the annual gift tax exclusion amount, effectively doubling their ability to make annual gifts. This can be a valuable estate planning strategy for those with large estates.
In 2020, individuals may gift $15,000 per year, per donee (e.g., grandkids, adult children, nephews, nieces) without triggering the gift tax, but married couples may give $30,000 per recipient through gift splitting, which removes those assets from their taxable estate. Therefore, if you are gifting the full amount to 10 recipients this year, you and your spouse may gift up to $300,000 per year tax-free.3 Just remember that if you gift split, you need to file a gift tax return.
“All the same rules that previously applied to opposite-sex couples now apply to same-sex couples,” said Levin. “So same-sex couples no longer have to use unique or complex types of estate planning tools to protect each other.”
Lifetime federal estate and gift tax limit
Married taxpayers may also leave behind twice as much money as single taxpayers to their heirs without triggering federal estate and gift taxes. For 2020, the aggregate lifetime estate and gift tax exemption limit has been temporarily raised to $11.58 million per individual, before being indexed for inflation. Married couples who do proper planning may gift a lifetime total of more than $23 million, a huge potential benefit for high-net-worth married taxpayers.4
Importantly, the marriage equality ruling also eliminated state inheritance taxes for same-sex spouses.
“Prior to marriage equality, a same-sex partner was treated as an inheriting nonfamily member and in Pennsylvania would have had to pay up to 15 percent in state inheritance taxes, but for spouses there is no inheritance tax,” said Levin. “That is extremely important because while the federal estate tax really only applies to wealthy individuals, state inheritance taxes often apply regardless of the size of the estate.”
Child and Dependent Care Tax Credit
If you paid someone to care for your child who is under age 13, your spouse who is mentally or physically incapable of self-care, or a dependent so that you could work or look for a job, you may be able to claim the Child and Dependent Care Credit on your federal tax return.
The dollar limit on the costs used to calculate the tax credit is $3,000 for an individual dependent or $6,000 for two or more dependents. The amount of the credit itself is from 20 percent to 35 percent of allowable expenses and based on your adjusted gross income.5
Levin added an important side note for same-sex parents: Non-biological parents should take steps to adopt their child so their parentage will be legally recognized by all 50 states and by the federal government.
The rules for married couples regarding ownership of retirement savings accounts represent yet another potential opportunity to strengthen your family’s financial safety net.
For starters, if your workplace plan permits and you need a financial lifeline, you can now take hardship withdrawals from your own 401(k) to cover qualified expenses (including medical, funeral, or postsecondary education) for your spouse. You must be able to demonstrate an immediate and heavy financial need based on the terms of your employer’s plan.6
The CARES Act also temporarily relaxed the rules for taking loans and early withdrawals from qualified retirement accounts. For loans from qualified plans, for 2020 the maximum loan amount was increased from the lesser of 50 percent of plan balance, or $50,000, to the lesser of plan balance or $100,000, for those who have suffered a financial loss as a result of COVID-19. Also for 2020, the 10 percent penalty has been suspended for early distributions from IRAs, 401(k) plans, 403(b) plans and governmental 457(b) plans, for COVID-19 reasons up to $100,000. They would still owe ordinary income tax on the amount withdrawn, but could potentially avoid the tax if the withdrawn amount is replaced within three years. (Learn more: What the stimulus package means for you)
Be aware, however, that borrowing or withdrawing money from your 401(k) can drastically reduce the size of your nest egg, which may leave you vulnerable during your golden years. Most financial professionals say tapping your retirement accounts should only be done as a last resort. (Learn more: Borrowing from your 401(k): The risks)
If you make more money than your spouse, you can also potentially boost the size of your combined retirement savings by indirectly funding his or her IRA.
How? The ability of married couples to pass money freely to each other means you can provide the financial support that enables your spouse to maximize his or her IRA savings. That helps you both.
Also, as with opposite-sex spouses, the surviving same-sex spouse may now roll over inherited retirement plan assets into their own IRA after their spouse dies. That enables the surviving spouse to defer taking required minimum distributions (RMDs) until age 70.
By contrast, if you inherit an IRA as a non-spouse beneficiary, you may have to begin taking RMDs by December 31 of the year after the account owner’s death, or withdraw the full balance within five years.
Employers are not required by law to provide health care coverage for their employees’ spouses, but if they do offer coverage, they must do so for both opposite-sex and same-sex spouses.
If you have a health savings account (HSA) or flexible spending account (FSA) at work, you can also now use it to cover the costs of qualified medical expenses for your spouse or children. (Learn more: Benefits and open enrollment: 5 tips)
Same-sex spouses may now also qualify for Medicare coverage based on their spouse’s work history, and they may qualify for Family and Medical Leave Act (FMLA), a federal law which entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons.
After the marriage equality ruling, the Department of Labor revised FMLA rules to allow eligible employees in same-sex marriages to take FMLA leave to care for their spouse or family member, regardless of where they live.7
The Families First Coronavirus Response Act provides most workers whose employers have 500 or fewer employees up to two weeks of paid sick leave at 100 percent pay (up to a maximum of $511 per day) where the employee is unable to work because the employee is quarantined, and/or experiencing COVID-19 symptoms and seeking a medical diagnosis. These workers can also receive up to two weeks paid sick leave at two-thirds pay (up to $200 per day) to care for an individual close to them, such as an immediate family member or roommate who is subject to a quarantine or isolation order or has been advised to self-quarantine by a health care professional, or to care for a child whose school or place of care is closed. The Act also provides these workers with up to 12 weeks of job-protected paid expanded FMLA leave to care for a child whose school or childcare provider is closed; the first two weeks are unpaid and the remaining 10 weeks at two-thirds pay (up to $200 per day). The definition of child includes children to whom the worker is “in loco parentis” (i.e., to whom the worker has assumed the obligations of a parent, regardless of formal legal relationship to the child). See more information about this on the Department of Labor website.
In most states, same-sex spouses can now also own property together as “tenancy by the entirety,” a title classification previously only available to a husband and wife. Tenancy by the entirety offers protection from creditors and guarantees that upon the death of one spouse, the survivor is automatically the sole owner of the property.
Those who purchased a home together before they got married with title “joint tenants with rights of survivorship” or “tenancy in common,” and later tied the knot should be aware that such title classifications may no longer be in their best interests, said Concetta Spirio, an attorney in Islip, New York, who works closely with the LGBTQ community.
A legal professional can tell you whether it makes the most sense to retitle your property now that you are legally married.
It’s important to note that while the federal Fair Housing Act prohibits housing discrimination based on race, color, religion, national origin, sex, familial status, and disability, it does not specifically include sexual orientation or gender identity as protected classes.
On the state level, anti-discrimination laws exist to varying degrees, but advocacy group Movement Advancement Project reports that 50 percent of the LGBTQ population still live in states that do not prohibit discrimination based on sexual orientation or gender identity.
Marriage is a big step, both emotionally and financially. While no one should let the availability or absence of financial benefits dictate their decision to wed, it does help to explore the implications — and potential opportunities — of taking a trip down the aisle.
If you choose to wed, or have already said “I do,” talk with a financial professional, tax professional, or estate planning attorney who is well-versed in the issues impacting the LGBTQ community and can help you make the most of the perks for which you are eligible.
Learn more from MassMutual…
This article was originally published April 2017. It has been updated.
1 Social Security Administration, “If You Are Divorced.”
2 Social Security Administration, “Survivors Planner: Survivors Benefits for Your Children.”
3 Internal Revenue Service, “Frequently Asked Questions on Gift Taxes,” January 16, 2020.
4 Internal Revenue Service, “What’s New —Estate and Gift Tax,” April 13, 2018.
5 Internal Revenue Service, “Child and Dependent Care credit,” March 1, 2018.
6 Internal Revenue Service, “Hardships, Early Withdrawals and Loans,” January 9, 2020.
7 U.S. Department of Labor, “Family and Medical Leave Act.”