All Same-Sex Marriages To Be Recognized For Federal Tax Purposes

The IRS will allow all married gay couples to file joint returns, but that still leaves couples in most of the country with more hoops to jump through.

Taxes Adding Machine

The Internal Revenue Service will recognize all legally performed same-sex marriages regardless of the state where the couple happens to live:

WASHINGTON — All legally married same-sex couples will be recognized for federal tax purposes, regardless of whether the state where they live recognizes the marriage, the Treasury Department and the Internal Revenue Service said Thursday.

The change stems from the Supreme Court decision in June that struck down the 1996 Defense of Marriage Act, which found that same-sex couples were entitled to federal benefits.

“Today’s ruling provides certainty and clear, coherent tax-filing guidance for all legally married same-sex couples nationwide,” Treasury Secretary Jacob J. 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 Treasury said that the ruling applies to “all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an I.R.A., and claiming the earned income tax credit or child tax credit.”

This would seems to be the  most logical way for the Federal Government to deal with this issue in light of the Supreme Court’s decision. If a couple is legally married in one of the thirteen states where same-sex marriage is legal, but then moves to a state where it isn’t there is no logical reason why they should lose their rights under Federal law merely because they happen to now live in a state that doesn’t recognize their marriage. Similarly, a couple that lives in a state that doesn’t recognize same-sex marriage but travels to one that does and is legally married in a state that does, there’s no reason why they shouldn’t be entitle to same basket of Federal rights than other Americans are.

Of course, both groups of couples will be faced with something of a tax planning conundrum. While they will be able to filed as a married couple for Federal purposes, they will not be able to do so for state or local purpose in jurisdictions that don’t recognize same-sex marriage. Many states, such as Virginia, base the calculation of state Income Tax liability on numbers borrowed from the Federal forms. So, this means that same-sex couples will be required to prepare two different sets of Federal returns, one for married couples, and one for each of them as single persons for the purposes of preparing the state return. If nothing else, this seems like yet another inequity experienced by gay and lesbian couples in states that don’t recognize same-sex marriage, and yet another argument in favor of nationwide recognition of same-sex marriage.

FILED UNDER: Law and the Courts, Taxes, US Politics, , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Tyrell says:

    Is that why the IRS has been doing all that spying on people?
    I remember a time when people came out better on their taxes if they weren’t married. Some couples actually went out and got divorced because they would save a lot.
    I guess if polygamy is ever legalized the IRS really would go hog crazy.

  2. @Tyrell:

    Actually, the question of whether or not there is a “marriage penalty” when it comes to Federal Taxes depends heavily on the tax situation of the couple involved. In some situations, it makes more sense for both parties to file as “Married filing Separately” in others a joint return is the best way to go.

  3. Laurence Bachmann says:

    @Tyrell: Poor Tyrell. Brown presidents. Gay marriage….Hilary waiting in the wings. His world’s been turned upside down.

  4. Alex says:

    Hell, I’m an American living abroad in a common law same-sex marriage to a non-American. I have no clue how to file – hopefully my accountant has done his research.

  5. Xenos says:

    @Alex: This is a very interesting question, although surely you do not mean a true common law marriage here. Is it a pacte sociale?

  6. Gromitt Gunn says:

    @Alex: Unless you have a marriage certificate from a state that issues marriage certificates to same-sex couples, nothing changes in the way you file.

  7. Tony W says:

    @Gromitt Gunn: I’d go with this advice, in fact I get all my tax/legal advice off chat boards from the interwebs 🙂

  8. Gromitt Gunn says:

    @Tony W: Heh.

    Well, I know that I am a gay guy who is also a CPA, and therefore has a vested interest in following these things, but clearly I have way to prove that so long as I choose to remain a psuedonym. 😉

  9. Tony says:

    Legally married? Just what does that mean? Many gAY couples were married in other countries, such as Canada. These marriages are legal. . .why can’t they be recognized here in the states? There seems to be nothing mentioned regarding the legality of gay marriages performed in other countries. Any comments??????

  10. Gromitt Gunn says:

    @Tony: The fact that Edith Windsor and Thea Spyer were married in Canada answers your question.

  11. stonetools says:

    I’m going to do what Doug never seems to do in these posts, and thank the Obama Administration for yet again leading on the same sex marriage issue.

  12. Gromitt Gunn says:

    @Gromitt Gunn: To be more specific, the two standards that typically used to determine whether a couple is married are ‘place of celebration’ and ‘place of residence.’ Wndsor v. United States relied on Windsor and Spyer’s marriage being legal due to the fact that it was legal in its place of celebration (Canada).

    This IRS ruling also is based on place of celebration, not place of residence. So, the answer to the common-law question asked above is mostly likely whether said common law marriage was recognized as a legal marriage in the place where the couple has held themselves forth as being married.

  13. Alex says:

    @Xenos: It’s a Canadian common-law marriage, which really exists and is rather more formally recognized than anywhere in the US. The Canadian federal government considers you to be common-law married if you’ve been cohabiting for twelve months or more, whether you’re a same- or opposite-sex couple.