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Julie Garber

Married Same Sex Couples Should Consider Filing Protective Tax Refund Claims

By November 5, 2012

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On the heels of a federal appeals court decision which gives same sex married couples the same rights as heterosexual married couples when it comes to federal estate taxes, tax experts are advising married same sex couples, as well as registered domestic and civil union partners, regardless of where they live, to file what is known as a "protective tax refund claim" in order to preserve their rights in case the Defense of Marriage Act is overturned by the U.S. Supreme Court. This applies to income taxes, gift taxes and estate taxes and involves filing joint, amended returns for income taxes and amended returns for gift and estate taxes. The reason for filing now is because there is a three year statute of limitations on tax refund claims, so couples who file now could receive refunds as far back as 2009. Couples should consult with their tax advisor to determine if they will benefit from filing a protective claim.

Meanwhile, tomorrow voters in four states will have the opportunity to cast their votes in favor of same sex marriages in their states. Currently six states - Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont - and the District of Columbia recognize same sex marriages, and now voters in Maine, Maryland, Minnesota and Washington will be able to weigh in on the issue. According to NPR, even though a few weeks ago President Obama publicly supported the ballot measures in three of the four states, the polls are currently too close to call in Maryland, Minnesota and Washington, with Maine being the only state most likely to pass the measure. Meanwhile, a recent article in the Los Angeles Times concluded that "Changed minds, not young voters, boost same-sex marriage support."

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