FAQs about Same Sex Marriage and Income Tax Laws, Part 1

With more and more states debating and in some cases passing laws permitting same sex marriage, an increasing number of same sex couples are finding themselves with questions about the treatment of same sex marriage from an income tax standpoint.

Following is Part 1 in a series of articles on frequently asked questions about federal income tax laws and same sex marriage as addressed by the IRS.

When does the IRS consider a same sex couple as legally married for federal income tax purposes?

The IRS leaves the determination of same sex marriage to the laws of local jurisdictions.  Although the United States does not have a federal law permitting same sex marriage, 17 states have legalized same sex marriage, as have numerous other countries.

In general, if a same sex couple is married in a jurisdiction that has legalized same sex marriage, the IRS recognizes the couple as legally married.  This recognition is true whether the couple was married under state same sex marriage laws or law of another country.

What filing status does the IRS permit same sex couples to use on their federal income tax returns?

For 2013 and future tax year, the IRS requires that same sex married couples must file using married filing separately or married filing jointly.

For 2012 and prior tax returns filed before September 16, 2013, same sex married couples had to file using a filing status of individual or head of household.  However, same sex married couples may now amend those prior tax returns to married filing separately or married filing jointly if they were married during the original tax years.

Does the IRS recognize same sex marriages in cases where the couple now live in a jurisdiction that does not recognize same sex marriage?

Yes, the IRS bases the legality of same sex marriage on the jurisdiction where the couple were married.  The jurisdiction where the couple lives during the tax year of the filing or when the tax return is actually filed is not taken into account.

Can a taxpayer claim a same sex spouse as a dependent?

No, a same sex spouse cannot be claimed as a dependent.

Can a same sex spouse use the head of household filing status?

The rules for filing as head of household are the same for any married couple, whether it is a same sex couple or a heterosexual married couple.  Taxpayers may use the head of household filing status if they meet two qualifications.  First, the taxpayer must live apart from his or her spouse for the last six months of the tax year.  Second, the taxpayer must pay for more than half of the living expenses of a dependent.

If a same sex married couple has a child and they choose to file using the married filing separately filing status, who can claim the child as their dependent for tax purposes?

The rules for claiming a dependent for tax purposes are the same for any married couple, whether it is a same sex or a heterosexual married couple.  Either parent, but not both, may claim the child on their federal income tax return.  In the event both parents seek to claim the child as their dependent, the IRS has two tiebreakers to determine which taxpayer can claim the child as a dependent.

First, the IRS will allow the parent with whom the child lived the most during the tax year to claim the child as their dependent.  If the child lived with both parents the same amount of time during the tax year, the IRS will allow the parent with the higher adjusted gross income to claim the child as their dependent.

What if I have other questions about federal income tax laws and same sex marriage?

If you have other questions on this subject, your best option is to speak to a tax attorney about your situation and how federal income tax laws apply to you.  A tax attorney will have the training and experience to answer your questions and help you file your state or federal income tax return.

You can speak with a tax attorney by completing the form on this web site or calling the telephone number at the top of this page.  The initial consultation with a tax attorney is free of charge.  All conversations with a tax attorney are confidential.

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by Mark Johnston

Mark has been a contributor to legal web sites related to bankruptcy, tax, and criminal law since 2011. He has an Accounting degree from Texas A&M University.