How does the IRS define a "husband and wife" for tax and estate planning purposes?

Daniel E Clement
Profile Picture of Daniel E Clement

Daniel E. Clement is a divorce and family law attorney who has been practicing since 1986 and blogging at the New York Divorce Report since 2006. Daniel uses his in-depth experience to provide sensitive representation for his clients during an emotional and challenging time in their lives. Daniel writes and lectures on family law issues, and he is sought after as an expert in the field by print, television and radio journalists. He represents a wide range of clients frequently needing help with a divorce or a pre-nuptial agreement. Daniel focuses on educating his clients on family law so they're empowered to make decisions and understand what they're owed. Full Bio


How does the IRS define a "husband and wife" for tax and estate planning purposes?


In the aftermath of the Supreme Court decision recognizing same-sex marriage, same-sex marriage has become the law of the land.

Federal laws and regulations are now being promulgated to effectuate recognition of same-sex marriage. In proposed regulations, the IRS has defined the terms “husband” and “wife” to be an individual lawfully married to another individual. A “husband and wife” refers to two individuals lawfully married to each other, regardless of gender.

The IRS drew a distinction between marriage and other same-sex relationships such as domestic partnerships and civil unions. The latter will be not accorded marital status.

According to the proposed regulations:

Some couples have chosen to enter into a civil union or registered domestic partnership even when they could have married, and some couples who are in a civil union or registered domestic partnership have chosen not to convert those relationships into a marriage even when they have had the opportunity to do so. In many cases, this choice was deliberate, and couples who enter into civil unions or registered domestic partnerships may have done so with the expectation that their relationship will not be treated as a marriage for purposes of federal law.

Bottom line: the IRS will recognize the marital status of a couple, without regard to gender, if parties have legally wed. Relationships lacking the formality of marriage will not enjoy its legal benefits for, among other things, income tax purposes and estate planning.

This question was originally posted at The writer retains all copyrights.

Have a question? Ask Daniel E here.

View all questions from Daniel E.

Connect with us

Justipedia on Linkedin
Justipedia on Linkedin
"Justipedia" on Twitter

Sign up for Justipedia's Free Newsletter!


  • A lawyer is never entirely comfortable with a friendly divorce, anymore than a good mortician wants to finish his job and then have the patient sit up on the table.

    - Jean Kerr