Same-sex married couples may get a tax break from Democrats’ $1.75 trillion social and climate spending plan.
The latest iteration of the Build Back Better Act would let taxpayers who were legally married under state law before 2010 claim federal tax benefits that are unavailable under current rules.
Essentially, the revision would let couples file amended tax returns for years as early as 2004. They could file a joint federal return as a married couple, and claim refunds and credits that may result in a net tax benefit.
“It’d be pretty significant for some folks,” said Jeffrey Levine, an accountant and certified financial planner at Buckingham Wealth Partners in Long Island, New York.
Democrats’ legislation, which the House aims to pass this week, may change, and its ultimate success isn’t guaranteed.
United States v. Windsor
The current gap in tax rules for some same-sex married couples dates to a Supreme Court decision in 2013, United States v. Windsor, which struck down part of the Defense of Marriage Act.
The ruling required the federal government to recognize same-sex marriagesin states where they were legal.
Following the Windsor case, the IRS issued guidance that let taxpayers amend their tax returns with respect to their marital status, but only generally back to 2010, according to a Nov. 3 summary of the Build Back Better Act.
However, same-sex marriage was legal in five states (Connecticut, Iowa, Massachusetts, New Hampshire and Vermont) plus Washington, D.C., before 2010, according to the Pew Research Center. (Massachusetts became the first state to legalize the unions, in 2003, after its Supreme Judicial Court ruled that the state constitution gives gay and lesbian couples the right to marry. The U.S. Supreme Court later legalized same-sex marriage nationwide, in 2015, in Obergefell v. Hodges.)
Gay and lesbian couples who legally wed before 2010 would be able to file an amended tax return if Congress passes the Build Back Better Act with the provision intact.
“This is a fair thing to do,” said Steve Wamhoff, director of federal tax policy at the Institute on Taxation and Economic Policy. “People were married [but] the federal government wasn’t recognizing their marriages.”
While fair in terms of tax policy, it’s questionable whether many couples would make the effort to redo their tax returns and take advantage of new rules, Wamhoff said.
It’s also not a given that all married couples would benefit from filing a joint return instead of as single taxpayers.
Same-sex couples who’d benefit most from new rules would likely be those in which one spouse is a high earner and the other has little to no income, Levine said.
That’s largely due to the so-called marriage penalty, which is most common when each spouse earns a similar income.
For example, in 2004, single taxpayers were in the 28% tax bracket if their income exceeded $70,350. However, instead of a level twice that amount, married couples filing a joint tax return hit the 28% rate once income exceeded $117,250.
That basically meant married couples jumped into that tax rate more easily with respect to their income. (There’s still a marriage penalty, but a federal tax law in 2017 temporarily eased it.)
Married couples may also be able to claim certain tax benefits unavailable to single filers, Levine said.
For example, if a higher-earning spouse had paid for medical or education expenses for the other spouse pre-2010, the high earner couldn’t claim medical or education tax breaks for those costs on their individual return, Levine said. They’d perhaps be able to do so on a married-joint return.
John Auten-Schneider and David Auten-Schneider came out about their finances about two years after they started dating.
The conversation started while they were looking to buy land in Winter Park, Colorado, to build a weekend home. As they planned, they realized they couldn’t afford to buy land, purchase an existing home or even rent there.
Together, they had more than $50,000 in debt, even though they had more than 15 years of combined experience in financial services at the time.
“It kicked off a conversation of, ‘Why do we know so much and are doing so little?’” John said.
The couple realized that growing up gay in communities that didn’t accept them played a part.
“We were using money to make ourselves feel better from the past,” said John, adding that it was also a tool to fit in once they did find the gay community.
Once they addressed those issues and envisioned the future they wanted — a comfortable retirement, means to travel and the ability to give back — they were able to pay off their debt and work toward other goals. They also established protections for each other, such as creating a trust and having health care proxy forms, to solidify their family.
It also brought about a career change. In 2015, the couple started Debt Free Guys, a personal finance site. A year later, they also launched Queer Money, a podcast about financial issues in the LGBTQ community.
They got married in 2017, after more than 13 years together. While they’d already taken steps to be recognized legally as partners, marriage brought further benefits such as tax breaks by filing jointly, survivor rights and access to spousal Social Security benefits if one were to die.
Having a handle on finances is important for LGBTQ individuals, as many start off behind their non-LGBTQ peers. Some may not have had supportive families and incur more debt for education, can face discrimination in the workplace, may need to protect financial assets from family and may experience higher costs associated with family building.
“Putting money aside is going to give you freedoms that a lot of folks don’t have, especially LGBTQ folks,” said John. “The more money you have for your own self and security, the more money and time and energy you can give back to the community.”
Marriage brings benefits and responsibilities
LGBTQ people also face a shifting legal landscape that can add steps in financial and family planning. It was legal to fire someone for being gay or transgender in some states until this year, and LGBTQ couples were only granted the right to legally marry in 2015.
“When you’re married it’s a different set of structures for planning the major issues,” said certified planner Jennifer Hatch, president of Christopher Street Financial, which specializes in LGBTQ finance.
“By marrying someone you become their next of kin — that is very important if people have very little family or hostile family,” Hatch said.
Marriage also brings about certain responsibilities, because you’re bound to your partner legally said Hatch. If you’re not married there are things you should do to make sure you protect each other in the event of death, disability or divorce.
As unromantic as those things are, they’re important to plan for, Hatch said, especially for LGBTQ newlyweds that tend to be older than non-LGBTQ peers when they enter a marriage and bring in more assets and potentially children.
Hatch recommends couples have detailed plans for what should happen in the event of death or disability which include medical proxy forms and account access information. In the event of divorce, Hatch says that couples can draw up a pre- or post- nuptial agreement that spells out how assets should be divided and addresses spousal support.
Those documents basically say despite the law, this is how we’re going to manage the relationship, she said.
The price of parenthood is high
LGBTQ people also have a lot of planning to do around building families, which is on the rise in the community. Nearly 80 percent of LGBTQ people aged 18 to 35 are already parents or are thinking about having children, a 44 percent increase over older generations, according to a 2018 survey from Family Equality, a nonprofit organization that aims to advance the rights of LGBTQ families.
The path to parenthood can be costly and require careful planning as many LGBTQ families plan to expand through foster care, adoption and assisted reproduction technology, according to the survey.
Jess Venable-Novak and their partner, Dory, are in the middle of family planning. The couple married in a small wedding in November 2019 after starting the process of having a sibling for their 7-year-old daughter, Dottie.
“The few gifts we did get for getting married we put right into a savings account for a fertility journey,” said Venable-Novak, who is nonbinary and uses “they” pronouns. The couple has since put any extra money in the same account, such as their tax refund and Covid-19 stimulus checks. Their parents have also helped with expenses.
So far, the Venable-Novaks have spent upwards of $15,000 out of pocket and are not yet pregnant.
“We weren’t anticipating spending this much money when we started,” said Venable-Novak, family engagement manager for Family Equality.
The original plan was for Dory, who will carry the baby, to get pregnant through a process called intrauterine insemination. But after five unsuccessful procedures that cost about $7,000, the family switched to in vitro fertilization, or IVF, which is more expensive.
There are other expenses that the family is saving for at the same time. The couple is working on putting away $6,000 so Dory can take 12 weeks off work after giving birth. Her job only guarantees five weeks of family medical leave with short-term disability pay and the couple is budgeting for legal fees and paperwork for second-parent adoption.
Even though the couple lives in Vermont, where they can both be listed on the baby’s birth certificate, Jess will have to legally adopt the baby to make sure they are recognized as a parent in other states.
They’re also balancing trying to get pregnant with other financial goals, including paying off credit card bills, student loan debt and looking to move.
Deciding to expand their family forced them to take a hard look at finances and talk about their goals, said Venable-Novak. “That was a moment of re-setting and reevaluating,” they said.
The benefits of being financially prepared
There are resources available to help LGBTQ people with financial planning and building a family. Many employers offer benefits for employees looking to create families, such as help with the adoption process, coverage for some fertility treatments or surrogacy fees and paid leave for both primary and secondary parents.
Others offer financial planning help, such as access to advisors or attorneys. John and David were able to see an attorney who helped them with legal documents before they were married by accessing a workplace benefit.
Same-sex couples can also forge their own path when it comes to money and family, as they generally don’t feel pressured to adhere to typical gender roles and are able to be on more equal footing when it comes to a relationship.
“You don’t have to imitate your parents and merge everything,” said Hatch, adding that she recommends a yours, mine and ours approach to finances. For many families, this means having a system that works for them and their unique needs.