Answers to FAQs for Individuals of the Same Sex Who Are Married Under State Law

Here are some answers to frequently asked questions relating to the tax consequences for individuals participating in a same-sex marriage.

*When are individuals of the same sex lawfully married for federal tax purposes?

For federal tax purposes, state or foreign law determines whether individuals are married.

*Can same-sex spouses file federal tax returns using a married filing jointly or married filing separately status? Yes.

  • For tax year 2013 and going forward, same-sex spouses generally must file using a married filing separately or jointly filing status.
  • For tax year 2012 and all prior years, same-sex spouses who file an original tax return on or after Sept. 16, 2013), generally must file using a married filing separately or jointly filing status. For tax year 2012, same-sex spouses who filed their tax return before Sept. 16, 2013, may choose (but are not required) to amend their federal tax returns to file using married filing separately or jointly filing status.
  • For tax years 2011 and earlier, same-sex spouses who filed their tax returns timely may choose (but are not required) to amend their federal tax returns to file using married filing separately or jointly filing status provided the period of limitations for amending the return has not expired. A taxpayer generally may file a claim for refund for three years from the date the return was filed or two years from the date the tax was paid, whichever is later.

*Can a taxpayer and his or her same-sex spouse file a joint return if they were married in a state that recognizes same-sex marriages but they live in a state that does not recognize their marriage? Yes.

For federal tax purposes, the IRS has a general rule recognizing a marriage of same-sex individuals that was validly entered into in a domestic or foreign jurisdiction whose laws authorize the marriage of two individuals of the same sex even if the married couple resides in a domestic or foreign jurisdiction that does not recognize the validity of same-sex marriages.

*Can a taxpayer’s same-sex spouse be a dependent of the taxpayer? No.

A taxpayer’s spouse may not be a dependent of the taxpayer.

*Can a same-sex spouse file using head of household filing status?

A taxpayer who is married cannot file using head of household filing status. However, a married taxpayer may be considered unmarried and may use the head-of-household filing status if the taxpayer lives apart from his or her spouse for the last 6 months of the taxable year and provides more than half the cost of maintaining a household that is the principal place of abode of the taxpayer’s dependent child for more than half of the year.

*If same-sex spouses (who file using the married filing separately status) have a child, which parent may claim the child as a dependent?

If a child is a qualifying child under I.R.C. § 152(c) of both parents who are spouses who file using the married filing separate status, either parent, but not both, may claim a dependency deduction for the qualifying child. If both parents claim a dependency deduction for the child on their income tax returns, the IRS will treat the child as the qualifying child of the parent with whom the child resides for the longer period of time during the taxable year. If the child resides with each parent for the same amount of time during the taxable year, the IRS will treat the child as the qualifying child of the parent with the higher adjusted gross income.

*Can a taxpayer who is married to a person of the same sex claim the standard deduction if the taxpayer’s spouse itemized deductions? No.

If a taxpayer’s spouse itemized his or her deductions, the taxpayer may not claim the standard deduction (I.R.C. § 63(c)(6)(A)).

If you are a partner in a same-sex marriage in the New York, New Jersey, Connecticut, Tri-State area and have any question about taxes, call THE TAX EXPERTS at the Thorgood Law Firm www.thorgoodlaw.com. For a FREE consultation call 212-490-0704.Answers to FAQs for Individuals of the Same Sex Who Are Married Under State Law

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