Gay Married Couples to Get Federal Tax Recognition Regardless of State Where They Live

In a decision prompted by the recent SCOTUS ruling on DOMA the U.S. Department of the Treasury said today it would recognize gay married couples for tax purposes regardless of the state laws regarding marriage in which they reside, the HuffPost's Sam Stein reports:

LewThursday’s ruling by Treasury Secretary Jacob Lew provides a uniform policy for the IRS; the state of celebration — where the wedding took place — now trumps the state of residency when it comes to federal tax status for same-sex married couples.

“Today’s ruling provides certainty and clear, coherent tax filing guidance for all legally married same-sex couples nationwide. It provides access to benefits, responsibilities and protections under federal tax law that all Americans deserve,” Lew said in a statement. “This ruling also assures legally married same-sex couples that they can move freely throughout the country knowing that their federal filing status will not change.”

The new policy, which was first shared by Lew in a conference call that included LGBT advocates, holds a bit of political significance. It was the burden of federal tax law on same-sex couples, after all, that prompted the legal challenge to DOMA in the first place.

Adds Stein:

Under the new Treasury policy, all federal tax provisions where marriage is a factor, including filing status, employee benefits, IRA contributions, earned income, child tax credits, and income, gift and estate taxes, will apply to same sex couples regardless of where they live. On the flip side, gay couples also will now be subjected to the so-called marriage penalty, in which some (usually upper-middle class) joint filers incur a higher tax burden than they would if they filed as single people.

More from the Treasury Department:

Any same-sex marriage legally entered into in one of the 50 states, the District of Columbia, a U.S. territory, or a foreign country will be covered by the ruling. However, the ruling does not apply to registered domestic partnerships, civil unions, or similar formal relationships recognized under state law.

Legally-married same-sex couples generally must file their 2013 federal income tax return using either the “married filing jointly” or “married filing separately” filing status.

Individuals who were in same-sex marriages may, but are not required to, file original or amended returns choosing to be treated as married for federal tax purposes for one or more prior tax years still open under the statute of limitations.

Generally, the statute of limitations for filing a refund claim is three years from the date the return was filed or two years from the date the tax was paid, whichever is later. As a result, refund claims can still be filed for tax years 2010, 2011, and 2012. Some taxpayers may have special circumstances (such as signing an agreement with the IRS to keep the statute of limitations open) that permit them to file refund claims for tax years 2009 and earlier.

Additionally, employees who purchased same-sex spouse health insurance coverage from their employers on an after-tax basis may treat the amounts paid for that coverage as pre-tax and excludable from income.

How to File a Claim for Refund
Taxpayers who wish to file a refund claim for income taxes should use Form 1040X, Amended U.S. Individual Income Tax Return.
Taxpayers who wish to file a refund claim for gift or estate taxes should file Form 843, Claim for Refund and Request for Abatement.

For information on filing an amended return, go to Tax Topic 308, Amended Returns at or the Instructions to Forms 1040X and 843. Information on where to file your amended returns is available in the instructions to the form.


  1. Hue-Man says

    “Today’s ruling provides certainty and clear, coherent tax filing guidance for all legally married same-sex couples nationwide.”

    I assume he meant to say “worldwide” instead of “nationwide”. For example, two American citizens married in Massachusetts (or Spain, etc.) but living in Namibia would file a joint return or married filing separately.

  2. RichQ says

    That’s good news. Next we need Social Security to change their rules. I’m in Illinois, so my partner and I have a civil union. Either Illinois gets its act together, we get married in another state, or we move.

  3. Zlick says

    Yay. Now it’s only the Social Security Administration that stands in the way of de facto Full National Marriage Equality!

    How can we pressure the SSA to get on board with the program?

  4. johnny says

    ^ This. What we’ve been waiting for.

    Now the states will def. fall like dominoes, with Mississippi and Indiana to be the last two making it legal for state law, sometime around 2020 or so….

  5. Dave in PA says

    @ SE – I doubt your PA marriage will qualify. You have to be married in a state that recognizes SSM for the Federal marriage to work. PA is not on board yet…

  6. Peter says

    Wow. So couples in a non-equality state, who wish to have a federally-recognized marriage, can travel to an equality state (or country) and get married. I was not expecting this but it’s wonderful news. A big step closer to marriage equality throughout the US.

  7. Rich says


    Your Montgomery County PA marriage might prove useful in pursuing state benefits, but if the Federal ones matter to you, go to Montgomery County MD and renew your vows.

  8. greg says

    I am a tax accountant. This is a CRAZY decision that goes against what every attorney I know thought the IRS would do… b/c most states use Federal AGI (adjusted gross income) to base the state tax on. My state, Colorado is an exception that uses Federal taxable income after deductions not AGI. Still, when Colorado’s civil union law was written, they explicitly stated that because of the constitutional amendment barring same sex marriage, that civil union couples would have to file as “single” or “head of household” aka single parents, for state tax purposes.
    Now this decision by the IRS means that 37 non-recognition of marriage states’ tax returns may have a different filing status than the Federal filing status, a reconfiguration of numbers twice for same sex married couples! A boon in business for us, but a nightmare for all couples’ taxes. Good luck having Turbo Tax figure this out!
    A couple that lives in a non-recognition state will file in 2013, a federal married filing joint or married filing separate tax return, then two single (or one head of household, one single if children) tax returns using your separate incomes on your state taxes. I don’t even see how this will be done since the state uses Federal taxable income or Federal AGI as a base for state tax! A DISASTROUS MESS to file state taxes in non-recognitin states.

  9. Chris says

    @Greg: We already have had the reverse of this situation for years. I live in Oregon which has Domestic Partnership. Every year we file as Single with the Federal government and Married with the state government. Since the state tax return is based on the federal, we have to create a “dummy” federal return that is not filed with the federal government in order to generate numbers for the state return. You’ll get used to it. But I hope this won’t go on for too long — I hope we have universal marriage equality before long.

  10. Tom says

    Greg is missing the bigger picture. The vast majority of same sex married couples live in states that permit such marriages. Why should all of these folks have to prepare 2 separate sets of federal returns (as they have had to up until now) in order to correctly file their state taxes? There are relatively fewer same sex married couples living in states that do not permit such marriages, so the IRS decision actually makes the tax filing easier for most of the same sex couples. The irony is that the states that do not recognize same sex marriage are going to have to change their tax codes to deal with people who are legally considered married by the IRS but not by the state.

  11. greg says

    @Chuckles&Tom- Good luck with Mississippi changing their codes or methods!
    @Chris- YOU are totally correct. I do many CA tax returns, and they have had a larger nightmare than you in Oregon. They live in a community property state, unlike you, and have had to split all community income (wages, self-employed income, etc.), most deductions and federal/state tax withholding on their two federal tax returns and THEN make a dummy CA return, like you, based on a Federal married filing joint return!

    All I’m saying all of you that this is still a mess! A victory for sure but a mess for people to file their taxes correctly. People in 37 states (well probably around 28 since a lot of red states don’t have a state income tax), maybe not a majority but still lots of people, including those who may have family trusts or rental properties in non-recognition states where they must file a tax return in that state, will have to file correctly under that states’ laws at the time. Filing a false tax return or getting the legislatures of states like MS, KS, NE, AL, ID, UT, VA, GA, SC, NC, etc. to add same-sex married couples to their laws don’t sound like viable options to me.

  12. WB says

    @Greg: Turbo tax has done a great job here in Oregon with our split taxes for the last five years. I’m sorry I don’t use an overpriced and over-opinionated accountant.

    I’m sure Turbo-Tax will handle our amended returns, as we will get money back by filing together.

    I hate when people seque into “Marriage Penalty”. That’s stupid. My taint a celebration by mentioning something that only affects a few people. Doesn’t the big picture of SS and death benefits mean that almost every couple saves a ton of money by filing as married.

    My Spouse and I were married in Canada in 2004. Our situation is such that we definitely overpaid federal taxes due to a law that should not have existed. Woowoo, our vacation is paid for! I’ll be using Turbo-Tax to handle the amended tax forms instead of … I already said it once.

  13. BG says

    Let the status wars begin. Staying married will be the hard part. Keep smiling. Nobody confesses to sexual boredom. The extra money won’t make up for the prejudice you’ll encounter — in big and little ways.

  14. Ted says


    The marriage penalty affects couples that make roughly the same amount of money. It’s based on the notion that most couples have, or should have, a primary income earner and a dependent spouse. Not only is this more likely to punish gay couples, it also reinforces an old gender stereotype.

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