Enrolled Agents Licensed to Represent
Taxpayers Before the IRS

Same-Sex Marriage

Same-sex couples who are legally married as of December 31 2013 generally must file married filing joint or married filing single.

In 2013 the Supreme Court held that a key provision of the Defense of Marriage Act (DOMA) is unconstitutional. As a result, effective September 16, 2013 individuals in a same-sex marriage will be treated as married for federal income, estate and gift tax purposes. This also applies to all federal tax provisions where marriage is a factor such as contributing to an IRA, earned income tax and child credits, dependency exemptions, standard deduction and tax free employee benefits.

Individuals who have legally entered into marriage in one of the 50 states, DC, a US territory or a foreign country are considered married.

Here are some additional issues:

  • For tax year 2012, same sex spouses who filed their tax returns prior to September 16, 2013 may choose (but are not required) to amend their federal tax returns using a married filing joint or separate tax status.
  • For tax years 2011 and earlier, and providing the period of limitations has not expired, same sex spouses may also choose but are not required to amend their federal tax returns.
  • The $25,000 offset for passive activity losses applies to same-sex spouses.
  • A same-sex spouse who is married but has lived apart from his or her spouse for the last 6 months of the tax year and provides more than half the cost of maintaining a household that is the principal residence for more than 6 months of the taxpayers dependent child, may claim head of household status.
  • A same sex couple can now claim a jointly owned and operated unincorporated business as a Qualified Joint Venture allowing each member to receive credit for Social Security and Medicare contributions.
  • A taxpayer who adopts the child of his or her same-sex spouse cannot claim an adoption credit for expenses incurred in adopting that child.

Please call me if you have questions. I will be most pleased to provide further information.

Tony Adley EA
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