Pass Wealth Tax Free by Marrying a Descendant?

As I discussed in a previous post, some states ban close relatives from marrying with gender-based consanguinity statutes on the premise that same-sex unions are unlawful. For example, Mississippi law states:

The son shall not marry his grandmother, his mother, or his stepmother; the brother his sister; the father his daughter, or his legally adopted daughter, or his grand-daughter;... and the like prohibition shall extend to females in the same degrees. All marriages prohibited by this subsection are incestuous and void. Miss. Code Ann. § 93-1-1(1).

This statute does not prohibit a son from marrying his father; but this possibility was foreclosed by Miss. Code Ann. § 93-1-1(2), which prohibited marriage between persons of the same gender. The state of Massachusetts has a similarly-worded statute, but in Goodridge v. Department of Public Health, the court legalized same-sex marriage but addressed the statutory language. The court stated in a footnote that "the statutory provisions concerning consanguinity or polygamous marriages shall be construed in a gender neutral manner."

Today's Supreme Court decision of Obergfell v. Hodges holds that the Constitution requires states to license a marriage between two people of the same gender. It does not mention consanguinity or contain any limiting language like Goodridge, yet it applies to all states, including Mississippi and a handful of others with gender-based consanguinity statutes.

Accordingly, in these states, there is no law preventing an individual from marrying a close relative, as long as they are the same gender. Furthermore, it is unclear what rationale a state would have in removing the right of same-sex relatives to marry. The ability for wealthy individuals to pass their estate to an heir by marrying the heir and benefiting from the unlimited marital deduction is a compelling tax planning opportunity.

Posted in: Estate Tax