The IRS permits only legally married couples to file tax returns as “married, filing jointly.” Since the national legalization of same-sex marriage in 2015, it does not matter whether these unions are straight or gay, but they do need one thing in common as far as the IRS is concerned – a marriage license. It does not matter, in most instances, how long a couple has been together, whether they have children, or if they consider themselves married. An exception may apply to unmarried couples who live in the handful of states that still recognize common law marriages. Otherwise, both individuals must file as single taxpayers.
Common Law Marriage
Older people may recall when unmarried people living together were thought to be “living in sin.” It’s a quaint notion these days, but decades ago those who cohabited for a length of time and were otherwise in a quasi-marital situation might find their union considered marriage under common law. Today, the following states still recognize common law marriage:
- Rhode Island
- South Carolina
Washington, D.C., recognizes common law marriage. New Hampshire recognizes it only for inheritance purposes. Some states once had common law marriage statutes on their books but have since abolished such recognition. Some states may still recognize common law marriages for those couples whose cohabitation preceded the date the laws were changed.
There is no magic number of years in any of these states that automatically make a union a common law marriage. Instead, a court examines various factors including the length of the partnership, the extent to which the couple presented themselves as married, and whether they shared finances and household expenses or kept all such matters separate.
Consequences of Married Filing Jointly
If an unmarried couple decides to file a joint return, the IRS considers them married. That means if they ever split up, they must receive a divorce in order to return to single filing status. That’s a possibility if living together in a common law marriage, but not if you live in a state that doesn’t recognize such relationships. Since there are tax benefits to a married, when you file joint status but aren't married, you are defrauding the IRS.
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Registered Domestic Partners
A number of states had civil unions and registered domestic partnerships before the legalization of same-sex marriage. For same-sex couples, such states may have automatically converted these couples status to marriage after same-sex marriage was legalized on either the state or national level. Some states, such as California, allow domestic partnerships if one member of the couple is aged 62 or older, so they will not lose certain benefits should they remarry. However, such domestic partnerships are not recognized on the federal level as the same as marriage, and these couples cannot file as married, filing jointly.
Claiming a Dependent
While you probably can’t file jointly with your girlfriend on your tax return, you may be able to claim her as a dependent. To qualify, she must have earned less than $4,050 in taxable income in 2017, lived with you for the entire year as a household member, and is not claimed on anyone else’s return as a dependent. You must also contribute at least half of her support for the entire year. Your girlfriend must also possess U.S. citizenship or permanent legal status. An exception is made for Mexican or Canadian residents.