Same-Sex Spouses and the IRS

What are the rules for same-sex couples when it comes to recognition by the IRS and filing federal tax returns? 

Here are some questions and answers that provide information to individuals of the same sex who are lawfully married.

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

  • In Obergefell v. Hodges, 576 U.S. , a landmark civil rights case, the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.The Obergefell decision was rendered June 26, 2015 and made same-sex marriage legal in all 50 states and for all purposes of federal law.  But state law determines whether individuals are “married”.  Marital status makes a difference in tax reporting  for federal tax purposes.
  • The IRS general rule recognizes a marriage of same-sex spouses that was validly entered into in a domestic or foreign jurisdiction whose laws authorize the marriage of two individuals of the same sex.  Each state (and country) has different rules recognizing what is marriage.  For example, Texas state law is strict regarding recognition of “common law” or informal marriage.
  • Can same-sex spouses file federal tax returns using a married filing jointly or married filing separately status?

    The rules for married filing jointly or married filing separately status, described above, apply to all  married individuals.

  • What most married couples don’t realize is that they can amend their tax returns for up to 3 previous years.  For same-sex couples this means that all couples who were married prior to 2015 in a state which recognized same-sex marriages you may be able to amend your return and claim the tax breaks afforded married couples. Tax year 2013 and going forward, same-sex spouses generally may file using a married filing separately or jointly filing status.

In 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. In 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.

Refunds

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.  If you have any questions regarding this blog post or the services offered, please don’t hesitate to contact us.

By Jan Jackson, Attorney