Yes, your same-sex spouse will be considered a surviving spouse for purposes of the marital deduction for estate tax purposes.
For federal tax purposes, the terms "spouse," "husband and wife," "husband," and "wife" include individuals married to a person of the same sex if the individuals are lawfully married under state law. This definition applies even if the couple resides in a state that does not recognize the validity of same-sex marriages. Therefore, a same-sex spouse who is lawfully married under state law is recognized as a "surviving spouse" for federal tax purposes, including for the marital deduction under estate tax provisions.
Section 2056 of the Internal Revenue Code provides that the value of the taxable estate is determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes from the decedent to the surviving spouse. This deduction is available to same-sex spouses who are lawfully married, as they are included in the definition of "spouse" for federal tax purposes.
Additionally, Revenue Ruling 2013-17 confirms that for federal tax purposes, the terms "spouse," "husband and wife," "husband," and "wife" include individuals married to a person of the same sex if the marriage was validly entered into in a state whose laws authorize such marriages. This ruling ensures that same-sex spouses are treated the same as opposite-sex spouses for federal tax purposes, including the marital deduction for estate tax purposes.
Therefore, if you are lawfully married to your same-sex spouse under state law, your spouse will be considered a surviving spouse for purposes of the marital deduction for estate tax purposes.
Sources:
Rev. Rul. 2013-17
Rev. Rul. 72-612
Publication 555 (3/2020)
§ 2056. Bequests, etc., to surviving spouse
