Tax Filing Status Options for Same-Sex Couples
A 2015 Supreme Court decision changed the old rules
The U.S. Supreme Court ruled in June 2015 that all people have a right to marry regardless of the gender of either spouse. Technically, states can no longer deny marriage licenses to same sex couples. That case, known as the Obergefell decision, has had some significant tax consequences. Gay and lesbian married couples no longer have to file separate returns at the federal level.
Gay and lesbian couples who are lawfully married can file their tax returns just like any other married couple would. The same two basic options are available to them.
Filing a Joint Married Return
A couple can combine all their income and their deductions on one jointly-filed tax return. Using the married filing jointly status is administratively simple. You'll have just one return to prepare rather than two. The standard deduction is double that for the married filing separately status.
The principal drawback is that both spouses take responsibility for the accuracy of the tax return and for full payment of any taxes that are due on that return. This means that even if you earned $15,000 and your spouse earned $85,000, the IRS can come after you for payment of any associated tax, even if it was your spouse's income that generated it. Spouses are "jointly and severally liable" for a jointly-filed return.
Filing Separate Married Returns
A gay couple can also file separate tax returns if they choose to, with each spouse reporting their own income and deductions on their own return. But married filing separately is often considered to be a disadvantageous filing status because a range of tax breaks are off limits for these filers, including the Earned Income Tax Credit and the educational tax credits.
The principal advantage of filing separately is that each spouse is responsible only for what is reported on their own tax return and for paying any resulting tax that's due. They can't be held responsible for the accuracy of the other spouse's tax return or any taxes due on that return.
You Can't Use the Single Filing Status
The IRS makes it pretty clear that you must file one of the two married tax returns if you're considered married on the last day of the tax year, but the term "considered" can be a bit tricky.
You're considered unmarried for tax purposes if you're legally separated by a decree from a court, although you might not yet be actually divorced. You're still legally married and you can't marry anyone else, but you're considered unmarried for tax purposes if you have a court-issued decree. You could each file individual returns using the single filing status.
Having a separation agreement in place won't qualify, even if that agreement has been filed with a court.
And, of course, it's possible that you never tied the knot. Maybe you're living together as domestic partners or there's no formal arrangement between you at all. In this case, you can't file a married return any more than an unmarried heterosexual couple could.
Head of Household Filing Status
Married couples might also be able to file separate tax returns with one or both spouses filing as head of household in certain situations.
Suppose one spouse lives on the East Coast and the other lives on the West Coast. They have separate residences and they're raising two kids. One lives with the parent on the East Coast and the other lives with the parent on the West Coast.
As long as the spouses maintain separate residences and live apart from each other for at least the last six months of the tax year, and if they each have a dependent, they might be eligible for head of household filing status. This is particularly advantageous with regard to tax brackets and the standard deduction.
Other rules apply to qualifying as head of household, however. The taxpayer must pay more than half the cost of maintaining their own household during the course of the tax year.
The same qualifying rules for head of household apply to unmarried couples. You must be "considered unmarried" on the last day of the tax year, you must pay more than half the bills for maintaining the household, and you need a dependent. Here's where things might get interesting again.
Can You Claim Your Partner as a Dependent?
Your partner—although not your spouse—might qualify as your dependent, but the rules are strict. They must have lived in your home with you for the entire year. They must have only negligible income—no more than $4,300 as of the 2020 tax year. You must have paid for more than half of their living expenses in your home.
The Obergefell decision in combination with other tax laws gives you multiple options for tax filing, but it all comes down to your personal circumstances.