Since the Supreme Court’s ruling allowing marriage between same sex partners in any state this past June, we have had a number of tax filing related inquiries and concerns regarding same-sex marriage deductions. At minimum, the IRS will recognize all same-sex marriages for federal tax filing purposes.
Same-sex spouses must generally file using a married filing jointly or separately filing statuses. For federal tax purposes, the IRS has a general rule that recognizes a marriage of same-sex couples that was entered into validly in either a domestic or foreign jurisdiction whose laws authorize the marriage of two individuals of the same sex.
Related read: Tax Benefits of Same-sex Marriage
This prompts a few questions on what this ability to file jointly for married same-sex couples:
Q: Can a same-sex spouse be a dependent of the taxpayer?
A: No. A taxpayer’s spouse (regardless of gender) cannot be a dependent of the taxpayer.
A: No. The married taxpayer must file using either the married filing jointly or married filing separately status.
Q: If same-sex spouses file as married filing separate, which parent may claim the child as a dependent
A: Either parent may claim the child as a dependent, but not both.
Q: Can a same-sex married taxpayer claim the standard deduction if the taxpayer’s spouse chooses to itemize their deductions
A: No. If one spouse itemizes their deductions, the other may not claim the standard deduction.
Q: If a taxpayer adopts the child of their same-sex spouse as a second parent or co-parent, may the taxpayer claim the adoption credit for the qualifying adoption expenses he or she pays to adopt the child
A: No. The adopting credit may not claim the credit since it was a child of their spouse.
In addition to the above questions, there are special rules to keep in mind for qualified retirement plans as well:
- Qualified retirement plans must treat a same-sex spouse as a spouse in the same manner as the federal tax laws does.
- A person in a registered domestic partnership or civil union is NOT considered to be a spouse for federal tax law requirements relating to qualified retirement plans. Note this is true for both same and opposite sex partners.
- If a qualified defined contribution plan states that a participant’s account must be paid to the participant’s spouse upon death of the participant, the death benefit will be paid to the same-sex surviving spouse unless the participant named another beneficiary. (This type of plan is not required; however, to pay out the balance to a surviving domestic partner, unless he or she was named as the designated beneficiary).
