Advisor Insight

Same-sex marriage ruling levels financial playing field

Ilana Polyak, special to

The Supreme Court today delivered a historic victory for gay rights, ruling 5 to 4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live and that states may no longer reserve the right only for heterosexual couples.

With that Supreme Court decision extending the right to marry to gay and lesbian couples in all 50 states, same-sex couples in 14 states where there were bans have many financial issues to consider. (Tweet this.)

By normalizing marriage laws across all 50 states, the Supreme Court ensures that the same set of laws will follow married same-sex couples wherever they move.

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"In our increasingly mobile society, there are same-sex couples who might have been thinking of relocating to a state where their marriage isn't recognized," said certified financial planner Stuart Armstrong of Centinel Financial Group. He is also on the board of Pride Planners, a network of financial planners with expertise in working with same-sex couples.

Previously, couples living in states that didn't recognize same-sex unions could not collect a spousal benefit on Social Security, even though it's a federal benefit and even if they had been married in a recognition state. This was a big consideration for couples thinking about relocating for warmer locales in retirement like Florida and Texas. Now, all couples can access Social Security spousal benefits.

Those who filed an application two years ago after the Supreme Court's Windor decision overturning some aspects of the Defense of Marriage Act might be able to collect the benefit retroactively, said Armstrong. The key is to have filed the application.

The estate tax was thorny, too. Spouses are able to pass on unlimited assets tax free on the federal level. But if they lived in states where their marriages were not recognized and that state had its own estate tax, those assets would be taxed if they exceeded certain thresholds.

Read MoreSupreme Court legalizes same-sex marriage

Travel, too, will become less worrisome, advisors said. Same-sex spouses no longer have to worry about being shut out of medical decision in the unfortunate event that one partner needs medical care while traveling to a non-recognition state.

"It's still a good idea to carry certain [estate planning] documents, at least in this period of transition," Armstrong said.

"What this does is it levels state law with federal law," said Matthew McClintock, an estate lawyer and vice president of education for WealthCounsel.

Same-sex couples will now enjoy the same benefits—and sometimes downsides—of marriage that all other couples get, McClintock said.

Here are some financial issues that will be impacted by the decision:

Estate planning. The biggest outcome of the victory say estate attorneys is that same-sex married couples now have the same legal rights of spouses. They have the right to inherit property from their spouse even without a will, the right to adopt children together and make medical decisions on the part of a spouse.

Same-sex couples won't need to jump through hoops to take care of common financial and estate issues, said certified financial planner Nan Bailey of NPB Wealth Management.

"Rather than focus on 'work arounds' for rights and protections, the focus shifts to looking at [whether] there are any benefits that a spouse or child would be entitled to if this couple had been able to marry earlier," she said.

"For wealthy families, they get all the estate tax benefits," said Janis Cowhey, a lawyer and tax expert with Marcum's modern family and LGBT services practice group. "For couples of not significant wealth, this is more about protections."

When one spouse dies, all assets pass to the surviving spouse tax-free. But when couples were unable to marry and had estates of more than $5.34 million, the surviving partner had to pay the estate tax. Now gay and lesbian couples will receive the tax-free transfer.

It really simplifies things. Now you can do a married filing jointly even if your state doesn't like the fact that you're in a same-sex marriage.
Matthew McClintock
vice president of education for WealthCounsel

Federal taxes. In filing state taxes, couples typically complete their federal return first. That gives them their adjusted gross income, a number that carries over to state tax returns. But couples in the states that didn't recognize marriage were forced to file two sets of returns.

First, they would file a federal return as married. Then file a dummy return as singles in order to file a state return.

"It really simplifies things," McClintock said. "Now you can do a married filing jointly even if your state doesn't like the fact that you're in a same-sex marriage."

Feeling the tax bite. One area where it's not beneficial to be married is when it comes to dealing with the so-called "marriage penalty." Two high-earning people will pay more in taxes when filing jointly than they would on their own.

For example, two singles each making up to $89,350 would each be in the 25 percent tax bracket if they were to file on their own. But together, their $178,700 combined income puts them in the 28 percent bracket. The 25 percent bracket stops at $148,850 for couples who are married and filing jointly.

"Married people who make a lot of money will pay more being married," Cowhey said. "But if you have one breadwinner and a stay-at-home spouse, you will probably less in taxes."

While there may be no way to get around the marriage penalty, there might be one-time planning opportunities to take advantage of, Cowhey explained.

For example, the issue of adoption credits.

Estate planners advise their clients who are not a child's biological parents to adopt them, known as a second parent adoption. This smoothes out any problems in the case of the death of the other parent, McClintock explained.

Read MoreRuling to impact gay couples' finances

Taxpayers are eligible for a $13,400 tax credit for adoption.

"But once you're married, you can't get it if you're adopting your spouse's child," said Cowhey. For that reason, Cowhey recommends that the non-biological parent do the adoption and claim the credit prior to marriage.

The Supreme Court's action marks the culmination of an unprecedented upheaval in public opinion and the nation's jurisprudence.

"The court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them," Justice Anthony Kennedy wrote in the majority opinion. He was joined in the opinion by the court's liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

All four of the court's most conservative members—Chief Justice John G. Roberts Jr. and justices Antonin Scalia, Clarence Thomas and Samuel A. Alito, Jr.—dissented and each wrote separate opinions.