The debate so far has centered on cultural matters: whether gays have a civil right to marry or whether the traditional understanding of marriage should prevail in the law. If you read the writings by gay-marriage advocates, however, one subject keeps coming up again and again and again: the right to transfer property to a partner without being subject to taxation.
Massachusetts law severely taxes estates and, at a time when the estate tax is falling, the legislature in 2003 enacted changes that would even penalize residents beyond federal law. The key is this: the surviving spouse in a legal marriage doesn’t have to pay, with or without a will. To what extent is the drive for legally sanctioned marriages a tax avoidance scheme for long-term cohabitating same-sex couples? It’s a question worth asking. It could be that, on the margin, eliminating property-transfer taxes could be the key to avoiding an all-out cultural civil war.
This also points to a heads up for Republican legislators. To the extent you create a legal and tax environment that is disproportionately friendly to married but not single people, you are creating a political rationale for people associated with a wide-range of domestic arrangements to re-define themselves as married. If you subsidize something, you get more of it, one way or another.
