There are a lot of misconceptions surrounding common-law marriages, especially when it comes to taxes. The IRS does not have a specific definition for marriage, but rather defers to individual states to determine this status. So if you live in a state where common-law marriage is legally recognized, the IRS considers you married for tax purposes, and you can file a joint return. Even if you move away from the state where you began your common-law marriage, your legal marriage status will be recognized by other, non-common law states.
If your state recognizes common-law marriages and you meet the requirements to be considered in a common-law marriage, you can file taxes as married filing jointly.
IRS Does Not Permit Filing Taxes Married Unless You are Legally Married
An unmarried couple without common-law marital status cannot file a joint income tax return. It is a common misconception that a couple has to live together for specific number of years before they are considered legally married in the few states that recognize common-law marriage.
If you are in a common-law marriage state, and you meet the legal requirements for common-law marriage, you can file a joint tax return. In these states, you must live with your partner openly with the intent of being married. But there are other requirements that determine if your union is a recognized common-law marriage which vary by state.
While living together is generally a requirement for common-law marriage, it is not the only consideration. Age, legal capacity to marry and intention to be married are key factors that determine the validation of a common-law marriage regardless of the state. You must exhibit to the public that you consider yourself married. This can be accomplished by having joint credit card and bank accounts, referring to your partner as your spouse publicly, sharing joint debt and having the same last name. Most states that recognize common-law marriages have similar requirements that must be met before your marriage will be legally recognized.
Unmarried Couples Living Together and Taxes
When it comes to whether taxpayers in common-law marriages can file jointly on their income tax returns, the IRS is very clear. If the parties were legally recognized as common-law married pursuant to the laws of the state in which they live or in the state where the common-law marriage began, and the marriage has not been dissolved, such as by death or divorce, they can file joint tax returns. So, if your state recognizes your common-law marriage as a legal union, and you two are still together, then the IRS will recognize the union, and you may file a joint tax return, which affords you the lowest federal income tax rate.
Because the extent of recognition of common-law marriages varies by state, check the specific rules and statutes regarding common-law marriage in your particular state. For example, in Texas, couples must sign a declaration of informal marriage form provided by the county clerk, whereas no such form is necessary to validate a common law union in many of the other common-law states. In Oklahoma, it is harder to prove a valid common-law marriage because of conflicts between state statutes and case law. Although common-law marriages were effectively banned by the state after November 1, 1998, the courts seemingly have not decided if this ban can be upheld.
Which States Recognize Common Law Marriage?
Currently, the states that fully recognize common-law marriages are relatively few: Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Rhode Island, South Carolina, Texas, Utah and the District of Columbia, and each has its own requirements for recognizing a common-law union. Other states that once recognized common-law marriages, but no longer do, only those unions formed when they were still legal are valid. These states include: Alabama (no common-law marriage as of January 1, 2017), Georgia, Idaho, Oklahoma, Ohio and Pennsylvania. In California, there is no common-law marriage; however, it is important to note that if you file your federal tax returns single, but you are in a recognized same-sex marriage or registered domestic partnership (RDP) in California, you must file your California return as married/RDP for tax purposes.
As legislation is constantly changing, it is wise to check with a tax professional or attorney to see if your state recognizes common-law marriage.
- H&R Block: Unmarried and Filing Jointly
- FindLaw: Common Law Marriage States
- FindLaw: What is Common Law Marriage?
- Kaplan Professional Education: IRS Recognized Common Law Marriage Based on State Ruling
- Lawyers.com: What States Recognize Common Law Marriage?
- Nolo: Which States Recognize Common Law Marriage?
Tara Thomas is a Los Angeles-based writer and avid world traveler. Her articles appear in various online publications, including Sapling, PocketSense, Zacks, Livestrong, Modern Mom and SF Gate. Thomas has a Bachelor of Science in marine biology from California State University, Long Beach and spent 10 years as a mortgage consultant.