Since the United States Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) in June 2013, the federal government has begun to recognize same-sex marriages for federal purposes, including (significantly) for tax purposes. This means that same-sex couples may now file their taxes jointly, and may now benefit from the numerous Internal Revenue Service (IRS) rules that distinguish based on marital status. Unlike some other federal agencies, the IRS recognizes all same-sex marriages, which were validly entered into in a state which recognized same-sex marriages at that time, regardless of where the couple actually lives. This means, for example, that a couple from Texas who were married in Massachusetts (which recognizes same-sex marriage) and then returned to their home in Texas (which does not recognize same-sex marriage), will still being treated as legally and validly married by the IRS for tax purposes.
This is good news for many couples, and especially those who were validly married prior to June 2013, because these couples may retroactively amend their tax returns as far back as 2011, provided they were married at the time. (Note: that the deadline for filing amended returns generally is the later of three years after filing the original return or two years after paying the tax). However, some roadblocks still exist for married same-sex couples in terms of filing their taxes going forward. For one thing, even though a couple is married, they may not both be considered legal parents to their children, and therefore if the couple does decide to file separately, the “non-legal” parent will still be unable to claim their child as a dependent. Additionally, couples who live in a state which does not recognize their marriage may still need to file separate state tax returns, and different state tax laws may apply if one spouse dies or if the couple gets divorced.
Of course, the IRS’s recognition of same-sex marriages will have a further, more obvious impact in that tax options which are only available to single individuals will no longer be available to married same-sex couples. Neither spouse may now file under “head of household” status; as that is reserved for unmarried individuals with a qualifying child, and neither spouse may now claim the other as a dependent. Additionally, all same-sex married couples who get a second parent adoption—where one spouse adopts the child of the other spouse—will no longer qualify for the federal Adoption Tax Credit, which may be available to couples or individuals incurring qualified adoption expenses in any taxable year but does not include expenses paid towards a second-parent adoption when the parties are married. The IRS considers this type of an adoption a “step-parent” adoption, which is excluded from the tax credit.
Numerous additional changes or issues may currently apply to married same-sex couples dealing with the IRS, depending on each couple’s particular situation. Such couples should be sure to consult a qualified tax expert and/or family law attorney, as applicable, to ensure that they are navigating the tax system effectively and correctly.
Michele Zavos is a partner in the Zavos Juncker Law Group, PLLC, which practices family law in the District of Columbia, Maryland, and Virginia. Cody M. Perkins is an associate and legal fellow with the firm.
