Same-sex couples registered as domestic partners under New Jersey's Domestic Partnership Act are not entitled to the marital deduction for purposes of calculating the New Jersey estate tax due at the death of the first partner, according to a recent, published opinion out of the Appellate Division—Rucksapol Jiwungkul v. Dir., Div. of Taxation, No. A-4089-15T2 (N.J. Super. App. Div. May 11, 2017).

The Jiwungkul court upheld the lower court's findings that: (1) the Domestic Partnership Act (DPA), N.J.S.A. 26:8a-2(d), gives certain, enumerated rights to registered couples but does not give couples the right to claim a marital deduction for New Jersey estate tax purposes; and (2) the DPA's failure to grant this right is not a violation of the equal protection guarantee of the New Jersey Constitution because same-sex couples are able to access the same rights and benefits—including the marital deduction—afforded to married heterosexual couples in the state of New Jersey through same-sex marriage or civil union.

The marital deduction is a popular estate planning device that allows for the deferral of tax at the death of the first spouse (or civil union partner). Essentially, both the federal and New Jersey estate tax rules state that any assets passing outright to a spouse or into certain types of trusts for the sole benefit of the spouse qualify for the marital deduction. By taking the marital deduction with regard to these assets, assets are not taxed in the estate of the first spouse to die; however, any such assets (whether passing outright or in trust) are then included in the surviving spouse's estate upon his or her passing. Thus, the marital deduction is an estate tax deferral mechanism. Even so, the marital deduction is one of the most important tools at the surviving spouse's disposal. Not only does it defer taxes (it generally makes good economic sense to defer payment of taxes for as long as legally possible), but it also gives the surviving spouse more time to spend down assets or utilize other estate planning tools to decrease the value of the survivor's estate, which in turn reduces death taxes.