Same-sex individuals who were legally married may file tax returns using “Married Filing Jointly” or “Married Filing Separately” status. In fact, starting in tax year 2013 same-sex spouses have to use one of those two statuses. Because this is a recent change to the tax law, the IRS provides certain flexibility with respect to the taxes filed in the previous years. Here is the summary of options for same-sex spouses for:
- Tax year 2012; for taxes filed.
- after September 16, 2013 – must file as “Married Filing Jointly” or “Married Filing Separately”
- before September 16, 2013 – have option but not a requirement to file using “Married Filing Jointly” or “Married Filing Separately”
- Tax year 2011 – every taxpayer has 3 years to amend previously filed tax returns and same-sex spouses who filed taxes on time may amend them and file as “Married Filing Jointly” or “Married Filing Separately”
It is important to mention that the IRS recognizes same-sex spouses’ marital union if it was entered legally in a domestic or foreign jurisdiction. A same-sex spouse does not have to currently reside in a state that currently does not recognize same-sex couples as spouses. The most important factor for the IRS for filing purposes is legality of the marriage regardless where it took place.
Note about dependents
Same-sex spouses who have children can claim them as dependent provided that the child is considered a qualifying child (read more on who is a qualifying child). If the same-sex spouses file taxes as “Married Filing Separately” either one of the parents may claim a child as a dependent but not both of them. Typically a parent with whom the child spends more time during the taxable year is the one who can claim him/her as a dependent. If both parents share equal custody then a parent with a higher gross adjusted income will qualify for a dependent deduction.