FEDERAL ESTATE TAX DISADVANTAGES

FOR SAME-SEX COUPLES

Michael D. Steinberger
The Williams Institute, UCLA
Economics Department, Pomona College

July 2009
FEDERAL ESTATE TAX DISADVANTAGES
FOR SAME-SEX COUPLES

Michael D. Steinberger
The Williams Institute, UCLA
Economics Department, Pomona College

July 2009
Acknowledgements
This report was made possible through a generous grant from Merrill Lynch.

The content of this report does not necessarily reflect Merrill Lynch's views and Merrill Lynch is not
affiliated with the Williams Institute or UCLA School of Law. Merrill Lynch does not provide tax,
accounting or legal advice and its clients are instructed to consult with their own tax, accounting or legal
professional with respect to such advice.

The author would like to Lee Badgett, Patricia Cain and Brad Sears for helpful comments and Naomi
Goldberg for editing and graphic design assistance.

About the Author

Michael D. Steinberger is a Public Policy Fellow at the Williams Institute, UCLA School of Law, and an
Assistant Professor of Economics at Pomona College. He is a labor economist who studies wage and
labor supply differences related to sexual orientation.
FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES
Executive Summary

Throughout the course of their lives, same-sex couples experience many legal challenges not faced by
their heterosexual peers. Federal estate tax law continues this differential treatment into death. While
the estate tax laws generally allow married heterosexuals to transfer unlimited assets to their spouses at
death without incurring estate tax liability, Americans in same-sex relationships are limited in their ability
to transfer assets tax-free to their same-sex partner upon death.

2009 2010 2011

Same-Sex Decedents Affected 73 76 550
Average Additional Tax per Estate $3.3 million $0.2 million $1.1 million
Source: Author's Calculations

Using data from several government data sources, this report estimates the dollar value of the estate tax
disadvantage faced by same-sex couples. In 2009, the differential treatment of same-sex and married
couples in the estate tax code will affect an estimated 73 same-sex couples, costing them each, on
average, more than $3.3 million. In 2010 when the estate tax is repealed, same-sex couples will instead
be excluded from beneficial capital gains provisions for the year that will cost 76 same-sex couples on
average an additional $177,000 in capital gains tax payments. When the estate tax returns with an
exclusion limit of $1 million in 2011, hundreds more same-sex couples will pay on average $1.1 million
more in estate taxes than their married counterparts.

Same-sex couples are also excluded from Family-owned Farm and Closely Held Business Provisions in the
estate tax law, which limits their ability to transfer assets to the couples’ children. While many same-sex
couples can employ tax minimization strategies to lower their estate tax liability, these additional tax
minimization strategies themselves represent an estate planning cost that same-sex couples must bear
that married couples do not.

The loss to federal tax revenue of equalizing the treatment of same-sex couples would be less than
0.05% of total projected federal government revenue in each year 2001 to 2011. This estimate is an
upper bound because it does not take into account tax minimization strategies, which are costly for
same-sex couples but ultimately reduce total estate taxes paid to the government.

Although the spousal deduction might appear to be just one of the traditional benefits of marriage, in fact
the unlimited deduction is only a relatively recent change in the federal estate tax law enacted in 1981.
Modifying the deduction once again to extend it to same-sex couples would not impose a significant cost
on the federal government but would relieve a substantial burden on same-sex couples affected.
FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

Introduction

Throughout the course of their lives, same-sex accounting rules in that year will negatively
couples experience many legal challenges not affect the estates of partnered decedents.
faced by their heterosexual peers. Federal Taken together
estate tax law continues this differential these results In 2009, the
treatment into death. While the estate tax imply a large differential treatment
allows married heterosexuals to transfer financial impact
unlimited assets to their spouse at death without on same-sex of transfers to
incurring estate tax liability, Americans in same- couples affected partners would cost
sex relationships are limited in their ability to by the estate tax.
transfer assets tax-free to their same-sex
the estates of affected
partner upon death. While only a small partnered decedents,
fraction of all on average, over $3.3
While only a small fraction of estates are large estates are
enough to be subject to the estate tax, the affected by the million in additional
estate tax consequences for affected households estate tax, the taxes relative to an
can be significant. Same-sex couples face burden can be
federal marginal tax rates of up to 45% on the especially
identical married
bequest of assets to their surviving partner at significant for decedent.
death that exceed an excluded amount per same-sex couples
estate ($3.5 million in 2009). For the equivalent who are affected. In 2009, the differential
transfer, married couples pay no taxes. As a treatment of transfers to partners would cost
result, in order to reduce the estate taxes paid, the estates of affected partnered decedents, on
same-sex couples who have significant wealth average, over $3.3 million in additional taxes
often must implement tax minimization relative to an identical married decedent. The
strategies to pass assets to their partner or to total cost of equalizing the estate tax treatment
redirect these assets to other beneficiaries. of same-sex couples and married couples in that
year would be $238 million to the federal
This study details the cost of estate tax rules for government, about 1% of expected estate and
decedents in same-sex couples and the total gift tax revenue, and less than 0.05% of total
revenue gained by the government from the projected federal government revenue for the
unequal treatment. The report begins with a year.1
brief legal history of the rise of differential
treatment between heterosexual married and
same-sex partnered couples in the federal estate
tax code (henceforth married and partnered,
respectively). It then estimates the cost to
same-sex couples of not having the same
treatment as married couples when making a
bequest to their surviving partner at death.
Next, the report examines how partnered
decedents are not only affected by taxes on
bequests to their partner, but are also excluded
from Family-owned Farm and Closely Held
Business Provisions in the estate tax, further
limiting their ability to transfer assets to their
children. Further, even when the estate tax is
eliminated in 2010, differential capital gains tax
1
Council of Economic Advisers 2008.

1
FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

FEDERAL ESTATE TAX DISADVANTAGES FACED BY SAME-SEX PARTNERS

The Historical Development of the Estate

Tax and Spousal Advantages

While comprising only a relatively small source An estate tax places a levy on the estate of the
of federal government revenue, the estate and decedent when assets are transferred to a
inheritance tax system has a long and variable beneficiary. Alternatively, an inheritance or
history. The first United States inheritance tax legacy tax imposes a fee on a beneficiary upon
was levied in 1797 to raise funds for the new receipt of assets from an estate. As of 2008,
country’s navy amid rising hostility with France. fourteen U.S. states and the federal government
When hostility decreased, the tax was impose estate taxes, five states impose
subsequently repealed in 1802. Other wars also inheritance taxes, and three states impose both
led to two other short periods of inheritance tax estate and inheritance taxes. 3 As shown in
regimes between 1862 and 1902.2 The modern Figure 1, the percentage of estates affected by
estate tax was initially enacted in 1916 and has the modern federal estate tax is not large (0.6
undergone several revisions in its ninety-two % in 2008), but for those affected, the tax
year history. consequences can be very large.

Figure 1. Percentage of Decedents Paying Any Estate Tax, 1982-2011.

Source: Actual Numbers 1982-2004, Centers for Disease Control, National Center for Health Statistics and
Internal Revenue Service Statistics on Income Division; Predicted Numbers 2005-2011, US Census Bureau
National Population Projections, Urban-Brookings Tax Policy Center.

3
The 22 states retaining a state estate or inheritance
tax are Connecticut, Illinois, Indiana, Iowa, Kansas,
Kentucky, Maine, Maryland, Massachusetts,
Minnesota, Nebraska, New Jersey, New York, North
Carolina, Ohio, Oklahoma, Oregon, Pennsylvania,
Rhode Island, Tennessee, Vermont, and Washington.
In addition, the District of Columbia has an estate tax
2
Jacobsen, Raub, and Johnson 2007. (Fox 2008).

2
 FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

In recent times, the federal estate tax law has spouse who is a United States citizen. While the
provided numerous credits and deductions to charitable bequest and state estate tax
reduce the total incidence of the tax.4 One of deductions treat married and same-sex couples
the most significant is the charitable deduction. equivalently, the modern marital deduction does
Since 1918, the charitable bequest deduction not.
has allowed contributions to qualifying charities
to reduce dollar-for-dollar the value of the Today, the unlimited marital deduction
decedent’s estate, with no maximum deduction represents a distinct tax advantage that is
limit. Hence charitable bequests can be used to unavailable to same-sex couples. As of July
reduce, or even completely eliminate, federal 2009, same-sex couples have or will have the
estate tax claims against an estate. right to marry in only 6 states: Connecticut,
Iowa, Maine, Massachusetts, New Hampshire
From 1924 to 2004, federal rules allowed a and Vermont. Furthermore, the Defense of
credit for taxes paid towards state estate and Marriage Act states that the federal government
inheritance taxes. Between 1924 and 2001, this will only recognize marriages between a man
credit lowered the federal estate tax that would and a woman for purposes of interpreting
have been due dollar-for-dollar by the amount federal law. Therefore, even same-sex couples
paid to state estate who are married in their state will not be treated
The unlimited and inheritance as married for purposes of the federal estate tax
taxes, up to a marital deduction.
marital deduction of maximum of 16
assets transferred to percent of the Although the spousal deduction might appear to
a surviving spouse is taxable states
estate. All
imposed
be just one of the traditional benefits of
marriage, in fact the unlimited deduction is only
unavailable to state taxes up to a relatively recent change in the federal estate
same-sex couples. the maximum tax law enacted in 1981. Federal law between
federal credit.5 1916 and 1948 provided for no marital
Between 2002 and 2004, this credit was slowly deduction to the estate tax.6 Prior to 1942,
reduced. It was eventually eliminated completely residents of states with community property
in 2005, when it was replaced with a deduction. laws were covered by an effective marital
While the state tax deduction does not have a deduction equal to half of the value of the
cap like the former state tax credit, the estate, yet residents in the more numerous non-
deduction is less generous, as it only reduces community property states could not claim any
federal taxes by a portion of the state estate marital deduction at all.7 Between 1942 and
taxes paid, not by the entire amount. Many 1948 there was no marital deduction for the tax
states based their state estate tax formulas in any state.8
directly on the federal credit; hence the repeal
of the credit caused many states to
6
automatically eliminate their estate taxes during Luckey 2003.
7
this period. Jacobsen, Raub, and Johnson 2007.
8
In community property states, half of all property
obtained during marriage is legally owned by each
Most importantly for purposes of this analysis, spouse. Hence half of the estate’s assets in
federal law allows a deduction for bequests community property states were not subject to the
made to a decedent’s spouse. Since 1981 estate tax as they were legally owned by the
federal law has allowed an unlimited marital surviving spouse. In non-community property states
deduction for assets transferred to a surviving all jointly-owned property was considered part of the
decedent’s estate unless the surviving spouse directly
contributed to its purchase. To address the
4
A deduction reduces the gross value of the estate differential tax treatment between states, Congress
and hence reduces the final estate tax by the changed the estate tax in 1942 to include all
applicable estate tax rate times the size of the community property in the estate of the decedent.
deduction. A credit reduces the estate tax due by the Hence between 1942 and the next revision of the
entire amount of the credit. estate law in 1948, there was no marital exemption to
5
Michael 2006. the estate tax in any state in the US; married and

3
FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

The origin of the modern estate tax marital

deduction began in 1948. In that year, Finally, the Economic Recovery Tax Act (ERTA)
Congress again changed estate tax rules, this of 1981 granted an unlimited estate tax marital
time effectively extending community property deduction and expanded the types of property
rules to non-community property states. The eligible for the marital deduction. Since 1981,
Revenue Act of 1948 allowed a deduction from the unlimited marital deduction for estate taxes
the gross estate of property passing to a has remained unchanged in the tax code. The
surviving spouse, but limited this deduction to deduction allows married couples to provide for
fifty percent of the value of the estate. their spouse upon death without tax
Community property (already half owned by the consequences. Same-sex couples are not
spouse) was ineligible for the deduction. provided similar tax protection.

The Tax Reform Act (TRA) of 1976 extended the Further, there are other estate tax rules in
spousal deduction to allow 100% of transfers addition to the marital deduction that create
from small and moderate estates to pass tax advantages for heterosexual marriages but are
free to the surviving spouse. The act allowed a inaccessible to same-sex couples. Specifically, a
surviving spouse to claim a marital deduction of planned change in rules for how bequeathed
either one-half of the estate’s value or assets will be valued for capital gains taxes
$250,000, whichever was greater. Hence for (called basis rules) and some protections for
adjusted gross estates less than $250,000, the family owned businesses represent other areas
entire estate would pass to the spouse without where same-sex couples are disadvantaged
an estate tax, and estates up to $500,000 relative to married couples. While very few
enjoyed a marital deduction greater than fifty same-sex households are likely to be affected by
percent of the estate’s value. the protections for family-run businesses, many
more will be affected by the expected change in
Table 1. Estate Tax Exclusion Limits and Top basis rules in 2010. These provisions are
Tax Rate, 2001-2011. described in the next two sections.

Change of Basis Rules in 2010 Benefiting

Year Exclusion Limits Top Tax Rate
Married Couples
The most recent law affecting estate tax rules is
2001 $675,000 55%* The Economic Growth and Tax Relief
2002 $1,000,000 50% Reconciliation Act of 2001 (EGTRRA), which
made numerous changes to the federal estate
2003 $1,000,000 49% tax code. These changes had the effect of
2004 $1,500,000 48% narrowing the difference in estate taxes paid by
married and same-sex couples because the act
2005 $1,500,000 47% reduced the number of estates required to pay
estate taxes and the total estate tax rate faced
2006 $2,000,000 46%
by these estates (see Table 1). 9 Along with
2007 $2,000,000 45%
9
All gross estates above the yearly exemption level
2008 $2,000,000 45%
are required to file a federal estate tax return within
2009 $3,500,000 45% nine months of death, with a possible six month filing
extension. For tax purposes, the gross estate
2010 Unlimited 0% includes all assets and property of the decedent in
addition to jointly owned assets, life insurance
2011 & Later $1,000,000 55%* proceeds and certain property transferred during the
* An additional 5 percent surtax applies to taxable estates decedent’s life. Assets in the gross estate are valued
between $10 million and $17.184 million. at their fair market value at the date of the
Source: Internal Revenue Code. decedent’s death, although alternate valuations are
possible for family business assets and assets that fall
same-sex couples were treated equivalently by the in value during the six months immediately following
tax code. the death. After adjusting for deductions and credits,

4
 FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

other provisions, EGTRRA enacted a gradual other transferred assets will be valued at the
repeal of the estate tax culminating in full repeal lower of the carried-over basis of the decedent
in 2010, hence effectively equalizing the or the value of the asset at the time of death.
situation of same-sex couples and married However, in addition to the standard $1.3
couples in that year with respect to the estate million step-up basis amount, assets passed to a
tax per se. However after 2010, sunset spouse will receive an additional $3 million in
provisions in the act retire all EGTRRA changes step-up basis increase.
to the estate tax code and estate tax law returns
to the pre-EGTRRA rules. To see the impact of this change, consider this
example. Suppose a married decedent passed
In addition to eliminating the estate tax in 2010, stock worth $10 million at the date of death to
EGTRRA also changes the income tax rules his or her spouse in 2010. If the stock was
covering basis for inherited assets in a way that originally purchased for $5.7 million, the asset
continues the differential treatment of same-sex would contain $4.3 million in unrealized capital
couples relative to married couples. While not gains. Because the estate tax is repealed in
technically an estate tax, these basis rules affect 2010, there would
the taxation of assets bequeathed from a be no estate tax In 2010, a bequest of
decedent’s estate and must be considered in consequence for
2010 in addition to the estate tax rules the transfer, and if
$10 million in stock
governing those transfers. the spouse that would generate
immediately sold no tax for a married
Basis is the purchase value of an asset used the stock, no
when estimating capital gains taxes when the capital gains tax couple could
asset is sold. Capital gains are paid on the because of generate $450,000 in
difference between the sale price of the asset the step-up in
and its basis value. Since the beginning of the basis ($1.3 million
capital gains taxes
estate tax, heirs have been able to use the standard basis for a same-sex
current market value at the time of death as the step-up + $3 couple.
basis for their inherited assets, and not the million marital
original basis of the property when it was basis step-up).
obtained by the decedent.10 Because the estate However, if the decedent left the same stock to
tax places a tax on the transfer of assets, this a same-sex partner, the partner would only be
―stepped-up basis‖ rule prevents a double able to claim $1.3 million in step-up basis. The
taxation of the inherited assets by capital gains transfer would still not generate an estate tax,
and estate taxes. Therefore, should an heir but the heir would pay capital gains taxes of
immediately sell an inherited asset, he or she $450,000 on the $3 million worth of unrealized
would not face any capital gains tax on the capital gains contained in the inheritance ($10
asset. million – $5.7 million original basis - $1.3 million
standard basis step-up). The capital gains tax
In 2010, EGTRRA limits the total amount of would be even higher if the capital gains were
transferred assets eligible for a step-up in basis, from assets that were held for less than one
and replaces the valuation with a ―carry-over‖ year, or from depreciable assets.
basis. Estates will only be eligible for $1.3
million of basis step-up in 2010; the basis of any Hence despite the repeal of the estate tax in
2010, this change in basis rules may force
significantly more estates in that year to file
the estate then pays the applicable estate tax rate on estate tax returns than if the 2009 estate tax
the difference between the adjusted taxable estate rules were carried over into 2010.11 Therefore,
and the estate tax exemption level. even the elimination of the estate tax in that
10
The Tax Reform Act of 1976 formally changed the
year does not eliminate the difference in
stepped-up basis rules in a manner similar to
EGTRRA, but the Revenue Act of 1978 and the Crude treatment of same-sex partners.
Oil Windfall Profits Tax Act of 1980 suspended and
11
retroactively repealed the rule change (Luckey 2003). Buckley 2005.

5
FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

According to the Internal Revenue Code, family-

Family-Owned Farm and Closely Held owned farms and business provisions apply to
Business Provisions in the Estate Tax transfers to a ―family member‖ of the decedent,
Benefitting Married Couples defined as ―any
ancestor of the
Another difference in the estate tax code decedent; the
Even in cases where
between married and same-sex couples involves spouse of the the decedent and child
special consideration for family-owned farms decedent; a lineal of a same-sex partner
and closely held businesses. While these descendant of the
considerations are not necessary in 2010 when decedent, the worked together in the
the estate tax is repealed, they can affect estate decedent’s spouse, enterprise owned by
taxes in other years. Although few estates use or parent; or the
these provisions, they still represent a spouse of any lineal
the decedent, the child
mechanism to decrease estate tax liability for descendant.‖ 14 would be treated as
married couples that is not available to same- Hence, these any other employee.
sex couples. Two major provisions affect the business deductions
transfer of assets from a family-owned farm or represent another way that same-sex couples
closely held business from the decedent’s estate will be treated differently than married couples.
and hence put families of same-sex couples at a The disadvantage of leaving a family business to
disadvantage relative to families of married a same-sex partner is already captured in the
couples.12 estimates for the marital deduction above. In
addition, these favorable estate tax provisions
First, the Special Use Valuation (SUV) allows an apply when a married decedent passes a
estate to value land and other assets used in a business to the child of the surviving spouse
family farm or business at the value in their (unrelated to the decedent), even if the heir did
actual use, as opposed to its fair market value. not engage in the business during the
By allowing the estate to appraise these assets decedent’s life.15 Decedents with same-sex
in their current usage for the farm or business, partners would not be eligible for a similar
and not with regard to how much they would be deduction for an identical transfer to a child of
worth if sold for other purposes, the provision their surviving partner (unrelated to the
reduces the gross value of the estate and lowers decedent). Even in cases where the decedent
estate taxes. and child worked together in the enterprise fully
owned by the decedent, the child of the same-
Second, estate tax rules allow for a Qualified sex partner would be governed by the same
Family-Owned Business Interest (QFOBI) rules and restrictions as any other employee,
deduction that allows an additional estate but not the special privileges provided to a child
deduction for family-owned businesses. The of a married spouse of the decedent.
combination of the QFOBI deduction and the
standard exclusion limit cannot exceed $1.3
million. Hence, after the exclusion limit was
raised to $1.5 million in 2004, no estate was
eligible for the QFOBI deduction. However the
QFOBI returns in 2011 when the estate tax
returns with a standard exclusion limit of $1 14
million. In that year, the QFOBI deduction will Gangi and Raub 2006. In addition, an active
employee with a tenure of 10 years or more can
provide an addition $300,000 in deduction
qualify as an heir for the QFOBI deduction but can
allowance for qualifying family businesses.13 not qualify for the SUV deduction (Internal Revenue
Code: Section 2057 (i), Section 2032A (e)).
15
Although the heir would not have to have been
actively engaged in the business before the death, to
qualify for the family-owned farm and closely held
12
Gangi and Raub 2006. business provisions the heir must actively participate
13
$1.3 million maximum combined deduction – $1 in the business for a set period after the decedent’s
million applicable exclusion limit = $300,000. death.

6
 FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

ESTIMATES OF THE DIFFERENTIAL IN ESTATE TAXES FOR SAME-SEX

PARTNERS
In this section, we estimate the impact of the same-sex partner. Limitations in published IRS
differential treatment of same-sex and married statistics make 2004 the most recent year with
couples on the average estate taxes paid by all the necessary data for the analysis.
affected same-sex couples and on total federal
tax revenue from 2001 to 2011. Such an To estimate the number of same-sex partners
estimate requires a variety of data sources, affected by the lack of a deduction on transfers
since no single data set has information on of assets to their partner at death, we first
sexual orientation, asset levels, and estate tax estimate the number of partnered decedents
payments and deductions. The analysis, with assets above the estate tax exemption limit
therefore, begins by estimating the tax in the given year. The analysis begins by using
consequences of the inability of same-sex the 2004 American Community Survey (ACS)
couples to transfer assets to their partner upon from the U.S. Census Bureau to estimate the
death through a marital deduction. The analysis number of individuals living with a same-sex
is then expanded by incorporating the 2010 unmarried partner, 1,448,257. The ACS data
change in basis rules and the family-owned farm also provides an estimate of the number of
and closely held business provisions. It individuals living with a different-sex married
concludes with a discussion of the fiscal impact spouse in that year, 114,298,346. Therefore,
on the federal government of remedying the the number of same-sex couples is 1.3% of the
unequal treatment of the estate tax. number of married couples.

Estimating the Excess Estate Taxes Paid If death rates were the same in these two types
by Same-Sex Couples of households, then one could expect the
number of estates of same-sex decedents to
As shown in Figure 1, only a small fraction of also be 1.3% of the number of married
estates are affected by the estate tax—less than decedents. However, according to the ACS
1% in 2004. Likewise, only a small number of data, same-sex households tend to be younger
same-sex couples will be affected by their than married households. Accounting for this
exclusion from the marital deduction. age difference by using mortality rates by ten
Therefore, the first step is to estimate the year age cohort from the NCHS National Vital
number of decedents in same-sex couples with Statistics System and the ACS population
estates large enough to qualify for the estate estimates, it is likely that the number of deaths
tax, and then estimate the average tax of people in same-sex households was only
consequence of 0.93% of the number of deaths of people in
Only a small fraction the lack of a married households in 2004.16 Using this
of estates are affected deductionmarital for
methodology suggests that 10,086 individuals
with a same-sex partner died in 2004.
by the estate tax – these estates.
less than 1% in 2004. We take data Not all of those 10,000 individuals will be
from the U.S. adversely affected by the differential estate tax
Census Bureau and the National Center for treatment, however. Only a small fraction of
Health Statistics (NCHS) to estimate the number estates are required to submit an estate tax
of deaths of people in same-sex couples relative return because the value of the estate is over
to deaths of members of married couples. Next, the estate tax exemption amount.
Internal Revenue Service (IRS) statistics are
used to estimate the number and average
bequest size of estates of married decedents
that use the marital deduction. Taking these
results together, we can estimate the average
16
estate taxes paid on bequests to a decedent’s Calculations in this report use a more detailed value
of 0.9348%.

7
FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

Table 2. Estate Tax Filings for Married and Same-Sex Decedents in 2004 (in 2008 dollars).

Married Same-Sex
All Estates
Decedents Decedents
(actual figures)
(actual figures) (estimated figures)

Number of Estate Tax Forms Filed 42,239 19,581 183

Total Gross Estate Value $216 billion $108 billion $1 billion

Number of Bequests to Surviving
19,197 179
Spouses/Partners
Total Bequests to Surviving
$65.5 billion $0.6 billion
Spouses/Partners
Total Tax on Bequests to Surviving
$0 $294 million
Spouses/Partners
Source: Author's calculations.

Table 2 applies the 0.93% figure to estimate people living in married couples. Hence we can
that since 19,581 married decedents filed estate estimate that total transfers to same-sex
tax forms in 2004, 183 decedents with a same- partners upon death may be roughly 1% as
sex partner also filed an estate tax form in that large as total married bequests, for a combined
year. Deductions play a significant role in value of $613 million in bequests made from
determining which returns ultimately owe an 179 affected same-sex estates (unless otherwise
estate tax. Due in large part to the marital noted, all subsequent money amounts are in
deduction, 9.5% of married decedent estate tax 2008 dollars), as summarized in Table 2.19
forms required payment of an estate tax,
whereas 77% of all other decedents’ estate tax Since these bequests in 2004 would have been
form filings ultimately required payment of taxed at the 48% estate tax rate,20 same-sex
estate taxes.17 couples would have had to pay a total of $294
million in taxes on these bequests. 21 This tax is
Individuals in same-sex households will likely significant if estimated on a per estate basis.
want to provide bequests for their surviving Table 3 shows the estate tax consequences for
same-sex partner in the same way as married an average bequest from an average married
couples. Assuming that same-sex households and same-sex partner estate in 2004. The
have the same distribution of net wealth and average taxed estate was worth $5.5 million and
bequest motives as married households, we can
then estimate the likely size of bequests to 19
These figures were calculated in the following way:
partners if those transfers were allowed the $65.5 billion in married bequests* 0.93% =$613
marital deduction.18 As noted earlier, the million same-sex bequests; 19,197 married bequests
number of deaths of people living in same-sex * 0.93% = 179 same-sex bequests. The Bureau of
couples is nearly 1% of the number of deaths of Labor Statistics Consumer Price Index was used to
convert to 2008 dollars.
20
The federal estate tax has a progressive rate
17
Internal Revenue Service 2007d-f. schedule. This study uses the highest estate tax rate
18
Same-sex couples do not gain from all the same to calculate the estate tax consequence of the
economic benefits as married couples, which could bequest to the surviving partner. This strategy
reduce their wealth over time. Work-related insures the estimates represent an upper bound for
insurance and benefits are not always offered to the cost to the federal government of equalizing the
same-sex partners. Discrimination in the workplace estate treatment of same-sex and married couples.
21
can lead to same-sex couples having lower incomes This estimate does not take into account additional
and perhaps less wealth than married couples. See tax minimization strategies that same-sex couples
Romero, et al. 2007 for a comparison of family may use to reduce their estate tax liability. The role
income and home ownership rates between married of tax minimization strategies on the estimate will be
and partnered couples. discussed in detail in a subsequent section.

8
 FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

Table 3. Estate Taxes Paid by Equivalent Married and Same-Sex Estates Making Bequests to
Surviving Spouse/Partner in 2004 (in 2008 dollars).

Married Decedents Same-Sex Decedents

Average Estate Value* $5,510,464 $5,510,464

Standard Exemption $1,740,000 $1,740,000

Average Bequest to Surviving Spouse/Partner $3,414,534 $3,414,534

Taxable Estate (assuming no other deductions employed) $355,930 $3,770,464

Tax Consequence of Bequest to Surviving Spouse/Partner $0 $1,633,962

* Average gross estate value of all married decedents’ estates, including decedents who did not claim a marital deduction.
Source: Author’s calculations.

the average decedent made a $3.4 million value over $2 million (in 2004 dollars). Of these
bequest to their surviving spouse or partner. returns, 13,433 returns included a bequest to a
For the married household, this bequest would surviving spouse, with an average bequest of
have elicited no tax consequence, and the final $4.5 million (in 2008 dollars). Based on our
taxable estate after adjusting for the standard mortality estimates 126 same-sex decedents
exemption would have been $355,930. The tax would thus have estates over $2 million (in 2004
treatment of the same-sex household is very dollars) and make a bequest of the same
different. For the identical average bequest of average size to their same-sex partner. The Tax
$3.4 million, the same-sex decedent’s estate Policy Center predicts that 37,100 decedents in
would have faced an estate tax of $1.6 million. 2008 will need to file an estate tax return, an
increase of 35% over the number of estates
Extending the Analysis of Excess Estate over $2 million filing returns in 2004. One can
Taxes Paid by Same-Sex Couples for Years therefore assume that 35% more same sex
2001-2011 couples (for a total of 170 couples) would be
affected by the lack of a marital deduction in
Using Urban-Brookings Tax Policy Center 2008, and that these affected households would
forecasts, we can extend the analysis of the have the same average bequest size as in 2004
estate tax consequences of the differential after adjusting for inflation.24
treatment of same-sex couples’ bequests to the
years 2001-2011.22 Assuming that the number
of same-sex decedents making a bequest to
their partner is the same fixed proportion of the
total number of estate returns filed as in our
2004 estimates, we can calculate the average
estate tax consequence for same-sex decedents
and the total revenue to the government over
the period.23

As an example, in 2008 the standard exemption

limit was $2 million. In 2004, there were 27,421
estate tax returns filed for estates with a gross

22 24
Tax Policy Center 2005, Tax Policy Center 2008b. Inflation estimated based on Bureau of Labor
23
The Appendix details the assumptions necessary to Statistics CPI data for 2001-2008 and Congressional
extend the analysis in these years. Budget Office CPI Estimates for 2009-2011.

9
FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

Table 4. Excess Estate Tax Payments by Same-Sex Decedents Relative to Married Decedents,
2001-2011 (in millions of 2008 dollars).

Tax Disadvantage Relative to Married Decedents

Total
Bequests Total Denied
Predicted Not Family- Assets Not
# of Same-Sex Receiving Owned Receiving Average Total Revenue
Estate Tax Decedents Marital Business Basis Added Tax Gain by
Year Returns Affected Deduction Exemptions Increase Per Estate Government
(1) (2) (3) (4) (5) (6) (7) (8)
2001 109,562* 434 $835.9 $2.7 $1.1 $462.0
2002 66,400 293 $783.4 $2.7 $1.3 $393.1
2003 67,000 296 $777.5 $2.7 $1.3 $382.3
2004 42,239* 179 $612.8 $2.0 $1.6 $295.1
2005 44,300 188 $626.0 $2.0 $1.6 $295.2
2006 30,300 139 $593.8 $1.0 $2.0 $273.6
2007 33,100 152 $630.8 $1.0 $1.9 $284.3
2008 37,100 170 $667.0 $1.0 $1.8 $300.6
2009 15,400 73 $527.5 $1.0 $3.3 $237.8
2010 0 76 $90.0 $0.2 $13.5
2011 124,600 550 $1,120.6 $3.8 $1.1 $618.4
* Actual number of estate tax returns reported by the Internal Revenue Service.
Source: Author’s calculations.

This same process can be followed with the Family-owned Farm and Closely Held
2004 figures to estimate the number of estates Business Provisions in the Estate Tax
of affected decedents for 2005-2009. Under
current law, the estate tax is eliminated in 2010, In addition to being excluded from the unlimited
so we do not extend this process to that year. marital deduction, same-sex couples do not
The IRS Statistics on Income department has receive other estate tax protections for family-
actual estate tax filing information for 2001, owned farms and closely held businesses that
which is used to estimate figures for 2001-2003 are available to married couples. Table 4 also
and 2011.25 Taken together, these figures allow incorporates the costs of these lost provisions.
the estimation of the estate tax cost per same- While the exclusion of same-sex couples from
sex couple because they are denied a partner these provisions is costly for those affected, it is
bequest deduction similar to married couples. unlikely many same-sex couples would
Table 4 presents these results for the marital ultimately use these provisions if they were
deduction exclusion in column four. An estate available. Very few estates employ these
of a decedent with a same-sex partner will pay exemptions, and limited liability corporations
on average an additional $3.3 million in 2009 and limited partnerships provide alternative
and an additional $1.1 million in 2011 when the means to protect family-owned farms and
estate tax exclusion limit reverts to its 2002 closely held businesses. Of the 47,034 married
level. decedents filing an estate tax return in 2001,
only 229 used the Special Use Valuation (SUV)
and 245 used the Qualified Family-Owned
Business Interest (QFOBI) deduction. 26 The

25 26
Internal Revenue Service 2007a-c. Gangi and Ruab 2006.

10
 FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

majority of returns using these provisions were benefit to using the SUV and QFOBI deductions
for estates of less than $2.5 million. 27 when making a transfer to a surviving spouse,
the analysis assumes these deductions were
Providing equal access to the SUV and QFOBI made for transfers to a child of the decedent or
deductions for same-sex couples would decrease to a child of the surviving spouse. For same-sex
estate taxes for some estates passed to the couples, we assume that half of these
children of the couple. These deductions are not deductions would be taken for a transfer to a
necessary when transferring a family farm or decedent’s legal child, and half would be taken
business to a spouse because of the unlimited for a transfer to a partner’s legal child. Hence to
marital deduction. However, a married estimate the added cost of extending these
decedent could use one or both of these family business deductions to the children of the
deductions when transferring business assets to same-sex decedent’s partner, we further reduce
a child or to a child of their spouse. As the expected number of estates utilizing the SUV
discussed above, married and same-sex couples and QFOBI deductions by half. Following this
are treated differently under estate tax rules in formula, we estimate that 1-2 estates of same-
eligibility for these provisions for making sex partners would have used the Special Use
business asset transfers to a spouse’s or Valuation, and 1-2 would have used the
partner’s child. Qualified Family-Owned Business Interest
All estates of same- Estate tax law deduction in 2001. Estimated figures in 2004
sex decedents in specifically and later would be even lower because of the
allows use of higher standard estate exemption levels. These
2010 larger than $1.3 the SUV and estimates assume the disadvantage for transfers
million are potentially QFOBI of business assets to partners are fully captured
affected by their deductions by the marital deduction estimates, so the
when making a impact of these provisions are in addition to the
partners’ exclusion transfer to a partner bequest estimates obtained above.
from the carryover spouse’s child,
even when the To include the effect of equalizing deductions
basis for unrealized decedent was relating to family-owned farms and closely held
capital gains. not the legal businesses in the fiscal cost of giving same-sex
parent of the couples equal estate tax treatment as married
child. Same-sex decedents may not use these couples from 2001-2011, Table 4 assumes two
deductions when making an equivalent transfer estates would use the SUV in each year 2001-
to their partner’s child if the decedent was not 2005, one estate in each year 2006-2009, and
the legal parent of the child.28 three estates would use the exemption in 2011.
The Table further assumes two estates would
Using the percentage of same-sex couples use the QFOBI deductions in each year 2001-
relative to married couples computed above 2003, and three estates would use it in 2011.
(0.93%), we estimate the number of estates Estates are no longer eligible for the QFOBI
from decedents in same-sex relationships that deduction between 2004 and 2010 because of
would have used a family-owned farm or closely the higher standard exemption levels. Each
held business exemption in 2001. As there is no affected estate is assumed to use the maximum
value for the Special Use Valuation and the
maximum additional QFOBI deduction in each
27
The exclusion limit in 2001 was $675,000. Of the year.29
total 831 estates using the SUV, only 102 were for
estates over $2.5 million in value. Of the 1,114
estates that elected QFOBI, only 197 were for estates
above $2.5 million.
28
The ability for same-sex partners to be legal co-
parents of the same child varies by state, both for
29
adopted children and for children born to one of the The QFOBI limit is the difference between $1.3
parents. See ―Gay Parenting and the Legal million and the automatic exemption level in that
Landscape‖ in Cooper and Cates 2006. year.

11
FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

Estimates for 2010 Affected by the Change the distribution of gross estate value of
of Basis Rules decedents with same-sex partners. The Tax
Policy Center predicts that there will be 16,200
Even though the estate tax is eliminated in decedents with gross estates over $3.5 million in
2010, tax rules will still treat the bequests of value in 2010.33 In 2004, there were 11,399
same-sex couples differently from their married estate tax returns filed for estates with gross
counterparts in that year. The rules granting value over $3.5 million. Hence the Tax Policy
the additional $3 million basis increase for a Center data imply that the number of decedents
bequest to a spouse represent a very real with gross estate value over $3.5 million will
difference in the tax treatment of married and grow by 42% between 2004-2010.34 The 2004
same-sex couples. All estates of same-sex IRS data used above shows spousal bequest
decedents in 2010 that are larger than $1.3 data for estates with gross estate value between
million are potentially affected by their partners’ $3.5 million and $5.0 million, between $5.0
exclusion from the additional $3 million in million and $10.0 million, between $10.0 million
carryover basis for unrealized capital gains. and $20.0 million, and over $20.0 million.
Assuming the number of married bequests in
To calculate the tax impact on same-sex each of these groupings grows by an equivalent
couples, we first estimate the amount of capital 42%, and that same-sex decedents continue to
gains in a typical large estate. Poterba and represent 0.93% as many estates as married
Weisbenner estimate that unrealized capital decedents in 2010, 76 estates of same-sex
gains represented 36% of the total value of decedents will be affected by the step-up basis
estates in 1998.30 For estates over $10 million rule exclusion.
($13.5 million in 2008 dollars), unrealized capital
gains represented 56% of the value of the The analysis predicts 31-32 same-sex decedents
estate. Using a different dataset, research by with gross estates between $3.5 million and $5
Buckley similarly finds that 42% of the total million would each have $1.53 million in
value of assets transferred from estates in 2002 unrealized capital gains affected.35 Of the $1.53
(excluding bequests to spouses or charities) million in unrealized capital gains, $1.3 million
represented unrealized capital gains.31 As the will be eligible for the standard basis step-up.36
percentage of unrealized capital gains to the Married and partnered decedents will be treated
total asset value of the estate seems to be differently on the remaining $230,000 worth of
relatively constant between these two studies unrealized capital gains. Because of the
across different years, we assume that 36% of additional $3 million in basis step-up for assets
the estate value for estates in 2010 is from transferred to a surviving spouse, a married heir
unrealized capital gains and hence affected by will pay no tax on these unrealized capital gains.
the basis step-up provision. This suggests that However, a same-sex heir will eventually have
estates larger than $3.61 million (in 2010 to pay a 15% capital gains tax on the transfer,
dollars) will have assets with unrealized capital or $34,500, because the asset would retain its
gains in excess of the general step-up basis original basis. A similar analysis predicts 29
amount, although many smaller estates could same-sex decedents with gross estates between
also exceed the general step-up basis amount if $5-10 million would each be excluded from $1.4
a large proportion of the estate came from million in basis step up that married couples
unrealized capital gains.32 would receive, resulting in an eventual tax
consequence of $210,000 per same-sex heir.
Estimation of the number and average cost to
same-sex estates affected by the exclusion from 33
Tax Policy Center 2008b.
the marital step-up basis rules is similar to the 34
Note that 16,200/11,399 is 1.42. The same table
marital deduction analysis in other years, but predicts 9,500 estates with gross value over $5
here it is important to focus more specifically on million. In 2004 there were 6,643 such estates,
similarly predicting a 43% increase (9,500/6643 is
1.43).
30 35
Poterba and Weisbenner 2000. [($3.5 million + $5 million)/2]*0.36 is $1.53 million.
31 36
Buckley 2005. For ease of presentation, all dollar amounts in this
32
$1.3 million/0.36 is $3.61 million. paragraph are presented in 2010 dollars.

12
 FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

Finally, 15-16 same-sex decedents with gross One of the most straightforward of these
estates over $10 million will each be excluded strategies is to make gifts of assets to the
from the additional $3 million marital step-up, partner before death. While married couples
and their partners will each need to pay can make unlimited gifts to their spouse tax
$450,000 that an equivalent married couple free, gifts to a same-sex partner are taxable
would not have to pay. above an annual exclusion level ($13,000 in
2009).37 This forces same-sex couples with
Taken together, Table 4 shows a predicted 76 large estates to also use other tax minimization
same-sex decedents in 2010 will have to pay strategies.
taxes on bequeathed assets that equivalent
married couples will not. These couples will lose Same-sex couples can use life insurance as
out on basis step-up that will result in $13.5 another option to transfer assets at death. With
million (in 2008 careful planning of the payment of premiums
Same-sex decedents dollars) in and/or the use of a life insurance trust, the life
will lose out on basis eventual capital insurance policy may be removed from the
gains tax taxable estate of the decedent. 38 Another tax
step-up that will payments that minimization strategy is to carefully document
result in $13.5 million surviving spouses contributions towards assets held as joint
would not have to tenants with rights of survivorship to establish
in eventual capital pay. Hence equal ownership of the asset and prevent the
gains tax payments despite the repeal entire value of the asset from being included in
that surviving of the estate tax the estate of the first same-sex partner to die.
in 2010, the
spouses would not transfer of assets Further, same-sex couples may choose to
have to pay. from the estates redirect assets entirely away from their same-
of same-sex sex partner to minimize estate taxes. Trusts
decedents will continue to be treated differently may be used to hold assets and remove them
than for married decedents in that year. On from the taxable estate of the partner. For
average, each affected same-sex couple will pay example, under a bypass or credit shelter trust,
an additional $177,000 in capital gains tax assets are transferred to the trust at the death
payments that married couples would not have of the first partner but the surviving partner
to pay. If Congress allows EGTRRA to sunset maintains the ability to utilize assets in the trust
after 2010, EGTRRA’s limit on assets eligible for for needs of health, education, support and
a step up basis and the addition $3 million maintenance. Assets placed in the trust are
available to married spouses will be removed taxed at the death of the first partner, but not
from the tax code, and same-sex couples will no taxed a second time at the death of the second
longer be disadvantaged relative to married partner. In some circumstances the bypass
spouses in terms of these capital gains taxes. trust can be used to substantively replicate
some of the advantages that the marital
The Role of Estate Tax Minimization deduction gives to married couples. 39 However,
Strategies
37
The lifetime gift exemption is $1 million in 2009,
This analysis uses the bequest behavior of but the exemption also counts towards the estate tax
married decedents to predict the bequest exclusion limit.
behavior of same-sex decedents. However, 38
Kapp and Burkholder 2008.
39
knowing they cannot use the marital deduction For instance, in 2008 the exemption level was $2
same-sex couples will likely use tax minimization million. If both partners each had assets of $5
strategies to manage the transfer of estates to million, a bypass trust can be used to avoid a double
their partners. While these strategies are estate tax burden on transferred assets above the
exemption level of the first partner to die. The first
effective at reducing the total estate tax due to
partner to die would place $3 million in assets in a
the federal government, the strategies impose bypass trust and make the second partner the trustee
additional costs on same-sex couples not faced of the trust with limited control over use of assets in
by married couples. the trust. Assets placed in the trust would be subject

13
FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

the bypass trust still entails additional costs not Finally, to avoid estate taxes on bequests to
borne through use of the marital deduction. their same-sex partner, couples may elect to
Using a bypass trust requires same-sex couples make large bequests to charitable causes from
to pay estate taxes at the death of the first the estate of the first partner to die. 42 However,
partner to die,40 whereas under the marital among married couples, charitable bequests are
deduction married couples pay estate taxes on a large fraction of widowed decedents’ estates.
these assets at the time of the death of the If same-sex couples are similar, this tax
second partner. This results in potentially minimization strategy for the first partner to die
thousands of dollars of lost interest for the might only hasten, but not substantively
same-sex couples affected. Further, placing increase, total charitable bequests by the
assets in a bypass trust entails placing couple.
restrictions on the use of the assets that are not
necessary with a marital deduction. Hence, These tax minimization strategies require
while using a bypass trust may be beneficial planning and legal advice and are hence costly
under certain circumstances, the bypass trust for the same-sex couple. Further, they may also
strategy can not completely eliminate the result in the inefficient allocation of assets by
asymmetric estate tax treatment of same-sex the same-sex couple. The marital exemption
couples relative to married couples. And, in prevents married couples from needing to
many circumstances, the trust will not be engage in equivalent planning to execute the
effective in preventing same-sex couples from same transfer of assets between spouses.
paying estate taxes on bequeathed assets that Hence, while many same-sex couples will
married couples would not have to pay.41 employ these tax minimization strategies and
lower their estate tax liability, the tax
minimization strategies themselves represent an
to estate taxes at the time of the death of the first estate planning cost that same-sex couples must
partner, but will not be taxed a second time at the bear that married couples do not.
death of the second partner. Alternatively, a married
couple would simply use the marital deduction to
transfer $3 million in assets to the living spouse and
pay estate taxes on the assets at the death of the
Fiscal Implications for the Differential
second spouse. In this case, the bypass trust Treatment of Same-Sex Couples at Death
prevents same-sex couples from paying estate taxes
twice on the same $3 million, but the couples must Table 4 shows that the differential treatment of
still pay estate taxes on the assets while the second same-sex and married couples in the estate tax
partner is still alive, whereas married couples would code over the past decade has cost each
pay estate taxes on the assets at death of the second affected same-sex couple more than $1 million
spouse. on average, and has affected hundreds of same-
40
This only applies to assets over and above the
sex couples. As the standard exclusion limits
exemption limit for the first partner to die.
41
Expanding on the example in footnote 39, now
rise over the 2001-2011 period, fewer same-sex
suppose the first partner to die had assets of $5 couples are disadvantaged and the average tax
million, and the surviving partner did not have any cost of the differential treatment rises.
assets. At the time of the first partner’s death, the Therefore the cost of eliminating the estate tax
same-sex couple will pay estate taxes on the $3 asymmetry between same-sex and married
million placed in the bypass trust. These assets will couples falls over the period, but increases in
not be taxed again at the death of the second 2011. Even when the estate tax is repealed in
partner. Alternatively at the death of the first spouse, 2010, some same-sex couples will continue to
the married couple would use the marital deduction to
transfer $3 million to the surviving spouse without
paying any estate tax on the bequest. The married
couple will then be able to use the exemption level of pay estate taxes on $2 million more in transferred
the second spouse to shield an additional $2 million assets than the married couple, and have to pay
(in 2008) from estate taxes. Ultimately the total these estate taxes potentially years before the
estate tax exposure of the married couple would only married couple.
42
be $1 million at the death of the surviving spouse ($3 Charitable bequests have been shown to be highly
million - $2 million exemption level of the second influenced by estate tax rates (Bakija, Gale, and
spouse = $1 million). Hence the same-sex couple will Slemrod 2003).

14
 FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

bear an added tax cost in capital gains taxes CONCLUSION

that equivalent married couples will not face.
The differential treatment of same-sex couples
Equalizing the treatment of same-sex partnered and married couples by the federal estate tax
and married decedents over the 2001-2011 has not been a permanent part of the estate
period would have a very modest effect on tax’s ninety-year history. No federal estate tax
federal government revenue. Table 4 provides marital bequest deduction existed before 1948,
an estimate of the extra taxes paid by same-sex and the deduction only became unlimited in
couples because 1981.
they lack access
Equalizing the to the same In addition to not receiving an unlimited
treatment of same- marital bequest deduction for bequests to their same-sex
sex partnered deduction, partner, partnered decedents also do not benefit
family farm and from deductions to assist them in transferring
decedents over the small business family farm and business assets to their
2001-2011 period estate tax partner’s children. Further, even when the
deductions, and
would cost less than 2010 basis step-
estate tax is eliminated in 2010, basis step-up
rules will continue to treat same-sex partnered
0.05% of total up rules as and married couples differently when calculating
projected federal married capital gains taxes on assets transferred at
couples. The death.
government revenue. loss to federal
tax revenue of The cost of the unequal treatment on affected
equalizing treatment of same-sex couples would same-sex couples is quite large. In 2009 alone,
be equal to the total extra taxes paid. Yearly approximately 73 same-sex couples will have to
costs range from a low of $13.5 million in 2010 pay taxes their married peers do not. These
to a high of $618 million in 2011. These couples will have to pay, on average, nearly
estimates represent less than 0.05% of total $3.3 million more in estate taxes than would an
projected federal government revenue for each identical married couple. The unequal treatment
year during the period.43 Further, the of same-sex couples in regards to basis step-up
estimates are an upper bound since they do not will result in each of 76 couples paying on
take into account tax minimization strategies, average $177,000 more in capital gains taxes in
which are costly for the same-sex couple but 2010. In 2011, if Congress allows EGTRRA to
ultimately reduce total estate tax liability to the sunset, nearly 550 same-sex couples will pay, on
government.44 average, nearly $1.1 million more in extra estate
taxes than would identically situated married
couples. Remedying the unequal treatment of
same-sex couples would result in a decrease in
revenues in that year of $618.4 million to the
federal government. Extending the analysis to
the entire 2001-2011 period, the cost of the
estate tax disadvantage faced by same-sex
couples totals more than $3.5 billion. While a
large number, this sum represents less than
0.05% of total projected federal tax revenue for
43
Congressional Budget Office 2008, Council of the period.
Economic Advisers 2008.
44
In some cases where a bypass trust is employed by
the same-sex couple, the forgone revenue to the
federal government of equalizing estate tax treatment
of same-sex and married couples is only the interest
earned because the estate tax is paid at the death of
the first partner instead of at the death of the second
partner (as it would be with a married couple).

15
FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

APPENDIX
The multi-year analysis of the estate tax costs to exemption level) by the growth rate in all estate
same-sex couples in Table 4 relies on five main tax return filings calculated from the Urban-
assumptions. The first assumption is that the Brookings Tax Policy Center estimates.
Urban-Brookings Tax Policy Center predicted
figures for estate tax returns are valid and can The fourth assumption is that the distribution of
be used to predict the number of estates tax gross estate value across estate tax returns is
returns filed for years 2001-2011.45 If economic fixed, and the average bequest by gross estate
conditions have changed since the time of the value is constant over the 2001-2003, 2011 and
analysis, the total number of estate filings may 2004-2010 periods. As an example, of estate
be higher or lower than those estimated. tax returns filed for estates over $2 million in
value in 2004, 58 percent had gross estate
The second assumption is that the asset values of $2 to $3.5 million, 17 percent had
allocation and value of the gross estates for gross estate values of $3.5 to $5 million, 16
those filing estate tax returns are the same for percent had gross estate values of $5 to $10
very high net worth same-sex and married million, 5 percent had gross estate values of $10
households. There is little available data on to $20 million and 3 percent had gross estate
very high net worth individuals with information values above $20 million. The analysis for 2008
on sexual orientation that can be used to either (when the exemption threshold was $2 million)
confirm or reject this assumption. Given historic assumes the same distribution of gross estate
patterns of discrimination, same-sex couples value across the estimated number of estate tax
may be less likely to have high net worth than return filings. Estimated bequests are then
married couples. Alternatively, given the lower based on this distribution of gross estate value.
incidence of children in same-sex households, This fourth assumption is necessary because IRS
the estates may have higher retained net worth data limitations prevent a more ideal analysis
than married estates. Violation of this relative that estimates the estate value and average
wealth assumption could lead to the estimated bequest size in 2008 based on 2004 estate tax
number and value of affected same-sex estates returns above $1.7 million (which is the 2008
being too high if high net worth same-sex exemption threshold of $2 million expressed in
couples are less wealthy than high net worth 2004 dollars).
married couples.
The fifth, and final, assumption is that same-sex
The third assumption is that the number of decedents will exhibit the same bequest
same-sex decedents making a bequest to their behavior as their married counterparts. This
partner is a fixed proportion of the total number assumption almost certainly overstates the
of estate returns filed for the years 2001-2011. current bequests to the partners of same-sex
The analysis is founded on the estimate of the decedents. As discussed in the text, knowing
number of affected same-sex decedents they will not enjoy the same protections as
representing 0.93% of the number of married married couples, decedents will likely engage in
decedents making a bequest to their surviving tax minimization strategies to pass assets to
spouse in 2001 and 2004, the only years that their partner or will redirect these assets to
the IRS provides such bequest data.46 Analysis other beneficiaries. Identifying and
for the years 2002, 2003 and 2011 is then based implementing these tax induced avoidance
upon the 2001 figures, and 2005-2010 is based behaviors will result in additional costs borne by
on the 2004 figures. The estimated number of same-sex couples that married couples do not
affected same-sex decedents is extrapolated by need to engage in. Hence, the estimated
inflating the estimated 2001 or 2004 same-sex bequests of same-sex estates represent a
decedent filings (above the appropriate desired level of bequests if the couples were
treated equally to married couples. As they are
45
not, the estimates presented in Table 4 likely
Tax Policy Center 2005; Tax Policy Center 2008b. represent an upper bound for the estate tax
46
Internal Revenue Service 2007a-f.

16
 FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

costs to couples and revenue gain by the

government of bequests to a surviving same-sex
partner.

17
FEDERAL ESTATE TAX DISADVANTAGES FOR SAME-SEX COUPLES

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Buckley, John. 2005. ―Estate Tax Repeal: More Losers Than Winners.‖ Tax Notes.

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Internal Revenue Service. 2007b. ―Estate Tax Returns Filed for 2001 Female Decedents, by Age and Marital Status
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Internal Revenue Service. 2007c. ―Estate Tax Returns Filed for 2001 Male Decedents, by Age and Marital Status of
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Internal Revenue Service. 2007d. ―Estate Tax Returns Filed for 2004 Decedents, Values for Tax Purposes, by Tax
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Internal Revenue Service. 2007e. ―Estate Tax Returns Filed for 2004 Female Decedents, by Age and Marital Status
of Decedent and Size of Gross Estate.‖ Internal Revenue Service, Statistics of Income Division.

Internal Revenue Service. 2007f. ―Estate Tax Returns Filed for 2004 Male Decedents, by Age and Marital Status of
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