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Last week, Missouri Governor Jay Nixon signed Executive Order 13-14 (the “Order”). The Order explicitly grants same-sex married couples equal footing with heterosexual married couples as far as the option to file a joint return in the state. This is an unprecedented move in two key ways.

 

First, this move is very progressive. Missouri has become the first state to declare that same-sex married couples may file joint state tax returns. Second, which makes the progressiveness of the Order even more surprising, Missouri currently does not recognize same-sex unions. In fact, an amendment to Missouri’s constitution mandates that for a marriage to be valid in the state, it must be between a man and a woman. Thus, the Governor is conferring (or attempting to confer) a right to those couples who were legally married in states that recognize same-sex marriage that similarly situated couples within the state of Missouri do not have the ability to enjoy. In addition, the Order is at odds with Missouri’s constitution.

 

Most states that have provided advice on the issue of joint filing of state tax returns for same-sex married couples, such as Ohio, mandate that such same-sex couples who file a joint federal tax return separate each individual’s earnings reported in their joint federal return on a special state tax form. Similar to Missouri, Ohio has a constitutional amendment that only recognizes marriage between a man and a woman.

Due to the conflict between the governor’s Order and Missouri’s constitution, it is unlikely that this is the last time the governor’s Order makes headlines. Nonetheless, Missouri is unlikely to be the lone state to embrace the filing of joint state tax returns for same-sex married couples, only the first.

The Multistate Tax Update will continue to follow developments in the wake of the Court’s ruling in United States v. Windsor, as well as Revenue Ruling 2013-17 (holding, in part, that: (1) “husband” and “wife” include an individual married to a person of the same sex if the individuals are lawfully married under state law, and the term “marriage” includes such a marriage; and (2) a marriage of same-sex individuals that was validly entered into in a state whose law authorizes the marriage of two individuals of the same sex even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages). These holdings have only begun their ripple effect throughout the United States at both the federal and state levels. To be sure, a multitude of state legislation, rulings, guidance, and litigation will continue to ensue as a result. If you have questions on how these holdings or other developments may affect you or your business, please contact us.

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