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Copyright (c) 1995 University of Denver (Colorado Seminary)
Denver University Law Review

ARTICLE: Tax Planning for Same-Sex Couples


72 Denv. U.L. Rev. 359


Adam Chase *



Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution. 1

Justice Field's recognition in Maynard v. Hill of the legislature's broad authority over the definition of marriage neglects an important element: the legislature also prescribes who may marry whom.

By denying same-sex couples 2 the ability to enter into legally recognized marriages, legislative bodies have prevented lesbian women and gay men from availing themselves of the panoply of entitlements and privileges that come as part of the institution of marriage. This article explores various practical and economic advantages included in the marital package that are unavailable to unmarried couples. Specifically, the article focuses on the different tax treatment afforded married couples and gay and lesbian couples. The analysis highlights methods of achieving parallel rights and benefits through, inter alia,
contracting and tax planning. Finally, the article looks to the future likelihood of legally recognized same-sex marriages and the tax ramifications of such recognition.

Marriage, as "the most important relation in life," encompasses far more than the legal, ...
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