407 / What is the result if a same sex couple contributed amounts to a Health Savings Account (HSA) that exceed the applicable contribution limit for married couples?

A same sex couple legally married under the law of any state is now subject to the same HSA contribution limits as an opposite gender couple (see Q 397). As a result, the IRS issued guidance providing a remedy for situations in which both members of a same sex couple contributed funds to an HSA prior to the recognition of their marriage that, when combined, exceed the applicable limit for a married couple. The couple could choose to reduce one or both members’ contribution to the HSAs in order to avoid exceeding the contribution limit. In the alternative, if their contributions exceeded the threshold, the excess could be distributed to the spouses prior to the due date for filing their tax return. Any remaining excess contributions were subject to the penalty tax typically imposed under IRC Section 4973. These rules apply for the 2013 tax year and beyond.¹

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1.    Notice 2014-1, 2014-2 IRB 270.

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