In 2013, the Federal Government changed the way that same sex couples who are lawfully married are treated. For federal tax purposes, the IRS looks to state or foreign law to determine whether individuals are married. The IRS has a general rule recognizing 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 even if the married couple resides in a domestic or foreign jurisdiction that does not recognize the validity of same-sex marriages.
For the tax year 2013, the IRS held that same-sex couples must file using a married filing separately or married filing jointly status. The same-sex couples were allowed to admend their 2012 and 2011 tax returns after the ruling to married filing separately or married filing jointly status.
What does this mean for same-sex or registered domestic partners going forward? It means that if the same-sex couple was married in a state that recognizes same-sex marriage, they are married and need to file their tax returns under the status of married filing separately or married filing jointly. Whether the state that they live in recognizes same-sex marriage is not an issue. The determining factor on whether or not they are required to file as a married couple is which state they were married in and whether or not that state recognizes same-sex marriage.
A few questions have come up regarding this ruling. One is whether or not one spouse of the same-sex marriage can be the dependent of the other. The other question is whether or not one same-sex spouse can file head of household. The answer is really very simple. Look at the rules for traditional couples. Traditional couples can not be the dependent of the other. One member of a traditional couple can not file head of household. Therefore, same-sex couples are the same and the answer to both questions is no.
The basic fundamental to bear in mind is that the rules that are currently applying to traditional couples are now going to also apply to same sex couples. This will go for such questions as which parent will be able to claim the child on their tax return for a couple that files married filing separately. The answer is the one who the child lives with a greater percentage of the time. If this is equal, the tiebreaker is whichever parent has the greatest adjusted gross income. If one spouse itemizes his or her deductions, then both spouses must itemize their deductions. This is just the same as traditional couples.
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