Chart of Rules for Filing State Tax Returns for Same-Sex Couples

How to file state tax returns for gay and lesbian couples

Two interlocking heart-shaped rings
© t_kimura / Getty Images

Reference material on how to file federal and state tax returns for

  • same-sex married couples,
  • registered domestic partners, and
  • civil union partners.

Filing the Federal Tax Return

  • Marital status is determined based on where the marriage was celebrated and not based on where the couple resides.

For federal tax purposes, two persons are married if they were lawfully married in a state whose laws authorize the marriage.

In other words, if a marriage was legal in the state where the marriage was celebrated, then the couple is considered married for federal tax purposes.

We can call this the state of celebration rule. Here's the technical phrasing. In Revenue Ruling 2013-17 (pdf), the IRS writes: "individuals of the same sex will be considered to be lawfully married under the Code as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex, even if they are domiciled in a state that does not recognize the validity of same-sex marriages."

  • Marital status is determined on the last day of the year.

The general rule: if you are legally married on the last day of the year (December 31st), then you are married for the whole year for federal tax purposes. Married couples choose between Married Filing Jointly, Married Filing Separately, or Head of Household filing status.

  • Registered Domestic Partnerships and Civil Unions are not the same as marriage.

Domestic partners and civil union couples are not married for federal tax purposes. In Revenue Ruling 2013-17, the IRS writes: "For Federal tax purposes, the term 'marriage' does not include registered domestic partnerships, civil unions, or other similar formal relationships recognized under state law that are not denominated as a marriage under that state’s law." Domestic partners and civil union couples choose between Single or Head of Household filing status.

However, domestic partners and civil union couples might be required to file jointly or separately for their state tax return. In California, Nevada and Washington, community property laws apply to domestic partners in the same way that those laws apply to married couples. So, domestic partners may need to allocate their income and deductions using community property methods when preparing their federal tax returns. See Publication 555, Community Property, on the IRS Web site for details.

Filing the State Tax Return

  • Marital status is determined based on the laws of the state where the person resides.
  • States may require people in a domestic partnership and civil union to file jointly or separately (similar to married couples).
  • In states that do not recognize same-sex marriages, the couple may need to file as if they were unmarried.
  • It's recommended to review whether community property laws apply to each spouse in a non-recognition state that also a community property state.
  • It's recommended to review whether to file a protective claim in non-recognition states. A protective claim is a formal procedure of notifying the state tax department that the taxpayers' right to a refund may be contingent on future events. For same sex married couples, consider filing protective claims with the state in order to preserve the right to receive refunds just in case the state's ban on same-sex marriage is overturned as a result of a court case. A protective claim, in other words, preserves the ability of a couple to amend a previously filed tax return to switch from an unmarried filing status to a married filing status, and to recalculate their state tax and receive a refund of any overpaid tax.

    On October 6, 2014, the US Supreme Court let stand decisions in the fourth, seventh and tenth circuit courts of appeals overturning state-level bans on same-sex marriage. Accordingly, the states of Indiana, Oklahoma, Utah, Virginia, Wisconsin as well as Kansas, North Carolina, South Carolina, West Virginia and Wyoming are now required to recognize same-sex marriages within their states. That means, same-sex couples in these states may be able to file their state tax returns as married couples. However, we are waiting for official guidance from these states. The states impacted by these court cases are indicated with asterisks(*) in the chart below. In several instances, the tax department has pulled previously released guidance. This chart will be updated once the states release updated guidance. For more further details on this topic, see the Tax Foundation's article, "What Does Yesterday's Supreme Court Same-Sex Marriage Appeal Denial Mean for Same-Sex Couple Tax Filers?"

     

    How Same-Sex Couples File Their State Tax Returns

    State

    Recognize same-sex marriage?

    File state returns as married or unmarried?

    Guidance from the state tax department

    Alabama

    Recognition state as of February 9, 2015.

     

    Previous guidance (effective for returns filed on or after September 16, 2013) has been removed from the DOR Web site.

    Alaska

    Non recognition state

    No state income tax.

     

    Arizona

    Non recognition state

    File state returns as unmarried. Use AZ Schedule S to allocate income from federal return. Community property state.

    Guidance effective for tax returns 2012 and forward.

    Arkansas

    Non recognition state, although same-sex marriages were legal in the state from May 9 to May 16, 2014.

    DOR has not published any guidance.

    California

    Same-sex marriage recognized. Also offers Registered Domestic Partnerships.

    File state returns as married. RDPs file their federal return as unmarried. Community property state.

    Same-Sex Married Couples (ftb.ca.gov)

    Colorado

    Same-sex marriage recognized. Also offers Civil Unions.

    File state returns using same filing status as federal return. Civil union partners file their federal returns as unmarried persons.

    Income Tax Filing Status for Same-Sex Couples (colorado.gov)

    Connecticut

    Same-sex marriage recognized.

    File state returns using same filing status as federal return.

    Guidance found in the 2013 instructional booklet for Form CT-1040 (pdf)

    Delaware

    Same-sex marriage recognized. Also offers Civil Unions.

    File state returns using the Joint, Separate, or Combined Separate filing status. Civil union partners file their federal returns as unmarried persons.

    Guiance for Civil Unions;

    2013 instruction booklet (pdf)

    District of Columbia

    Same-sex marriage recognized.

    File state returns as married.

    Income Tax Return Filing Obligations of Same-Sex Spouses Married in Other Jurisdictions & Guidance regarding the estate tax

    Florida

    Non recognition state

    No state income tax.

     

    Georgia

    Non recognition state

    File state returns as unmarried.

    Informational Bulletin IT-2013-10-25 (pdf)

    Hawaii

    Same-sex marriage recognized. Also offers Civil Unions.

    File state returns as married. Civil union couples file their federal return as unmarried.

    2013 Instructions for Form N-11 (pdf)

    Idaho

    Non recognition state

    File state returns as unmarried. Community property state.

    Same-sex Couples and Idaho Income Tax Filing (tax.idaho.gov)

    Illinois

    Same-sex marriage recognized. Also offers Civil Unions.

    File state returns as married. Civil union couples file their federal return as unmarried.

    Guidance for Civil Unions (tax.illinois.gov)

    Indiana*

    Non recognition state

    File state returns as unmarried.

    Same-Sex Marriage Tax Filing Guidance (IN.gov)

    Iowa

    Same-sex marriage recognized.

    File state returns as married.

    What's New for 2013 (iowa.gov)

    Kansas*

    Non recognition state

    File state returns as unmarried. Use a worksheet (pdf) to allocate income from their federal return to their state return

    Notice 13-18, Guidance for Same-Sex Couples (pdf)

    Kentucky

    Non recognition state

    File state returns as unmarried.

    Kentucky Tax Alert, November 2013

    Louisiana

    Non recognition state

    File state returns as unmarried. Community property state.

    Revenue Information Bulletin Number 13-024 (pdf)

    Maine

    Same-sex marriage recognized.

    File state returns as married.

    Maine Tax Alert, Vol. 23, Issue 3 (pdf)

    Maryland

    Same-sex marriage recognized.

    File state returns as married.

    Frequently Asked Questions About Income Tax, Question 29, Can same-sex couples who are legally married file a joint return tax return in Maryland?

    Massachusetts

    Same-sex marriage recognized.

    File state returns as married.

    TIR-04-17

    Michigan

    Non recognition state

    File state returns as unmarried.

    DOMA Notice (pdf)

    Minnesota

    Same-sex marriage recognized.

    File state returns as married.

    Same-Sex Marriage &

    Three-page chart (pdf)

    Mississippi

    Non recognition state

    File state returns as unmarried.

    Individual Income Tax FAQs

    Missouri

    Non recognition state

    File state returns as married.

    Executive Order 13-14

    Montana

    Non recognition state

    File state returns as unmarried.

    Memorandum, Discussion of Same Sex Marriage, October 1, 2013 (pdf)

    Nebraska

    Non recognition state

    File state returns as unmarried.

    Nebraska Revenue Ruling 22-13-1 &

    Frequently Asked Questions for Individuals in a Same-Sex Marriage

    Nevada

    Non recognition state. However, offers Registered Domestic Partnerships.

    No state income tax. RDPs file their federal return as unmarried. Community property state.

    New Hampshire

    Same-sex marriage recognized.

    File state returns as married.

    Technical Information Release for November 15, 2010 (pdf)

    New Jersey

    Same-sex marriage recognized. Also offers Civil Unions.

    File state returns as married. Civil union couples file their federal return as unmarried.

    Bulletin GIT-4, Tax Topic: Filing Status (pdf)

    New Mexico

    Same-sex marriage recognized.

    File state returns as married. Community property state.

    2013 New Mexico Personal Income Tax Form Packet, page 19

    New York

    Same-sex marriage recognized.

    File state returns as married.

    Information for Same-Sex Married Couples  & Personal Income Tax Information for Same-Sex Married Couples

    North Carolina*

    Non recognition state

    File state returns as unmarried.

    Directive PD-13-1, Same-Sex Marriage and Filing Status (pdf) & Frequently Asked Questions for Same-Sex Marriage

    North Dakota

    Non recognition state

    File state returns as unmarried. Allocate income from joint federal return using Schedule ND-1S (pdf).

    Guideline: Income Tax Filing by Individuals in a Same-Sex Marriage (pdf)

    Ohio

    Non recognition state

    File state returns as unmarried. Allocate income from joint federal return using Schedule IT S (pdf)

    2013 Instructions for IT-1040, page 14 (pdf)

    Oklahoma*

    Non recognition state

    File state returns as unmarried.

    Public Notice: Oklahoma Income Tax Filing Status For Same Sex Couples 404

    Oregon

    Same-sex marriage & RDPs recognized.

    File state returns as married. RDPs file their federal return as unmarried.

    Oregon tax information for same-sex married couples

    Pennsylvania

    Same-sex marriage recognized.

    File state returns as married.

    No official guidance yet from DOR.

    Rhode Island

    Same-sex marriage recognized.

    File state returns as married.

    Advisory 2013-20 (pdf) & Same-Sex Marriage and Taxes: Frequently Asked Questions (pdf)

    South Carolina

    Non recognition state

    File state returns as unmarried.

    SC Revenue Ruling #14-1 401 (pdf) & Frequently Asked Questions: Filing Requirements (pdf)

    South Dakota

    Non recognition state

    No state income tax.

     

    Tennessee

    Non recognition state

     

    No official guidance yet from DOR.

    Texas

    Non recognition state

    No state income tax. Community property state.

     

    Utah*

    Non recognition state

    File state returns as married.

    Individual Income Tax Returns for Same-Sex Couples for Tax Year 2013 (pdf)

    Vermont

    Same-sex marriage recognized. Also offers Civil Unions.

    File state returns as married. Civil union couples file their federal return as unmarried.

    2013 Income Tax Return Booklet (pdf) & Shumlin Confirms New Vermont Estate Tax Guidelines for Same-Sex Marriages (pdf)

    Virginia*

    Non recognition state

    File state returns as unmarried.

    Tax Bulletin 13-13, Virginia Income Tax Treatment of Same-Sex Marriage (pdf)

    Washington

    Same-sex marriage recognized. Also offers Registered Domestic Partnerships.

    No state income tax. RDPs file their federal return as unmarried. Community property state.

    West Virginia*

    Non recognition state

    File state returns as unmarried.

    2013 IT-140 Personal Income Tax Forms and Instructions booklet (pdf)

    Wisconsin*

    Non recognition state

    File state returns as unmarried. Allocate income from joint federal return using Schedule S  (pdf). Community property state.

    Tax Guidance for Individuals in a Same-Sex Marriage

    Wyoming*

    Non recognition state

    No state income tax.

     

    Continue Reading...