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State Tax Filing Options for Same-Sex Couples

Thursday, September 26, 2013

State Tax Filing Options for Same-Sex Couples

StateState Constitution Bans Same-Sex MarriageRecognizes Same-Sex Marriages, Civil Unions or Domestic Partnerships Within the StateRecognizes Same-Sex Marriages, Civil Unions or Domestic Partnerships From Other JurisdictionsAvailable Filing Status
AlabamaYes. [Ala. Const. amend. 774 (1901)]No. [Ala. Code §30-1-19]No. [Ala. Code §30-1-19]Single; head of household.
AlaskaYes. [Alaska Const. art. I, §25 (1959)]No. [Alaska Stat. §25.05.011]No. [Alaska Stat. §25.05.013]Does not have a personal income tax.
ArizonaYes. [Ariz. Const. art. 30, §1 (1910)]No. [Ariz. Rev. Stat. Ann. §25-101]No. [Ariz. Rev. Stat. Ann. §25-112]Single; head of household.
ArkansasYes. [Ark. Const. amend. 83, §§1, 2 (1874)]No. [Ark. Code Ann. §9-11-208]No. [Ark. Code Ann. §9-11-107]Single; head of household.
California• May 2008: In In re Marriage Cases,1 the California Supreme Court held that California's statutory ban against same-sex marriage was unconstitutional under state constitution.
• Nov. 2008: 52.30 percent of California voters voted in favor of Proposition 8, a constitutional ban on same-sex marriage.
• May 2009: In Strauss v. Horton,
2 the California Supreme Court upheld the constitutional ban.
• In Perry v. Scwartzenegger,
3 the District Court for the Northern District of California (2010) and Court of Appeals for the Ninth Circuit (2012) held the ban was unconstitutional.
• June 26, 2013: United States Supreme Court rules in the case, renamed Hollingsworth v. Perry, declaring that the petitioners did not have standing to bring the case, which invalidated the case and made the California Supreme Court's decision the current standard.
Yes.
Recognizes registered domestic partnerships. [Cal. Fam. Code §297]
Yes.4 [Cal. Fam. Code §308(b)]; [Cal. Fam. Code §308(c)]
• California has not yet released guidance for married same-sex couples following the Hollingsworth v. Perry decision.
• Spouses in recognized same-sex marriages required to file as:
- married/registered domestic partnership (RDP) filing jointly or
- married/RDP filing separately.
• Beginning in 2010, spouses in valid same-sex marriages outside California - required to file as:
- married/RDP filing jointly or
- married/RDP filing separately.
• A same-sex spouse may file as head of household if he/she maintains the main home for his/her child and is considered “unmarried.”
• Beginning in 2007, partners in registered domestic partnerships are required to use the same filing statuses available to married couples. [Tax Information for Same-Sex Married Couples (FTB Pub 776)]
ColoradoYes. [Colo. Const. art. II, §31 (1876)]No.5 [Colo. Rev. Stat. §14-2-104(1)(b)]No. [Colo. Rev. Stat. §14-2-104(2)]Colorado requires the same filing status for both the federal and state returns. If the IRS allows a particular filing status, the same filing status must be used on the Colorado return. [Web Release - Income Tax Filing Status, Same-Sex Marriage, 9/12/13]
ConnecticutNo.Yes.6 [Conn. Gen. Stat. §46b-20]; [Conn. Gen. Stat. §46b-38rr]Yes. [Conn. Gen. Stat. §46b-28b]Joint, single, head of household. [Announcement AN 2012(1), 12/28/11]
DelawareNo.Yes. [Del. Code Ann. tit. 13, §101(a)] Yes. [Del. Code Ann. tit. 13, §101(d)]• Delaware has not yet released filing guidance for married same-sex couples.
• Beginning in 2012, partners of civil unions must file as:
- joint
- married/civil union & filing separate
or
- married/civil union & filing combined separate.
• Partners in a civil union may not file as single or head of household. [FAQs: Civil Union Tax Rules in Delaware]
District of ColumbiaNo.Yes. [D.C. Code Ann. §46-401]; [D.C. Code Ann. §32-702]Yes. [D.C. Code Ann. §46-405.01]• Beginning in 2007, domestic partners were allowed to file jointly or married filing separately.
• Beginning in 2009, same-sex spouses validly married in other jurisdiction may file jointly or married filing separately. [News Release 3/4/10; News Release 2/7/08 citing Domestic Partner Tax Filing Fact Sheet]
FloridaYes. [Fla. Const. art. I, §27 (1968)]No. [Fla. Stat. §741.212]No. [Fla. Stat. §741.212]Single; head of household.
GeorgiaYes. [Ga. Const. art. I, §4 (1983)]No. [Ga. Code Ann. §19-3-3.1]No. [Ga. Code Ann. §19-3-3.1]Single; head of household.
HawaiiYes.7 [Haw. Const. art. I, §23 (1959)]No.8 [Haw. Rev. Stat. §572-1]No. [Haw. Rev. Stat. §572-3]Single; head of household.
IdahoYes. [Idaho Const. art. III, §28 (1890)]No.9 [Idaho Code §32-201]No. [Idaho Code §32-209]Single; head of household.
IllinoisNo.No recognition of same-sex marriage. [750 ILCS 5/201, 5/212] However, does recognize civil unions between same-sex or opposite-sex couples. [750 ILCS 75/10]Yes.10 [750 ILCS 5/213]• As of Dec. 31, 2012, partners of civil unions are required to use the filing status:
- married filing jointly or
- married filing separately.
• May not file as single or head of household. [Information Bulletin FY 2012-05, 1/12]
IndianaNo.No. [Ind. Code Ann. §31-11-1-1]No. [Ind. Code Ann. §31-11-1-1]Single; head of household.
IowaNo.No by statute, yes by court opinion.11 [Iowa Code Ann. §595.2]Yes.12 [Iowa Code Ann. §595.20]• Beginning in 2009, same-sex spouses must file as:
- married filing jointly
- married filing separately on an Iowa return
or
- married filing separately on a combined Iowa return.
• May not file as head of household. [Iowa Tax Treatment of Same-Sex Marriages, 2009]
KansasYes. [Kan. Const. art. XV, §16 (1859)]No.13 [Kan. Stat. Ann. §23-2501]No. [Kan. Stat. Ann. §23-2508]Single; head of household.
KentuckyYes. [Ky. Const. pt. 2, §223A (1891)]No. [Ky. Rev. Stat. Ann. §§402.005, 402.020]No. [Ky. Rev. Stat. Ann. §§402.040, 402.045]Single; head of household.
LouisianaYes. [La. Const. art. 12, §15 (1974)]No. [La. Civ. Code Ann. art. 86]No. [La. Civ. Code Ann. art. 3520]Single; head of household. [Revenue Information Bulletin 13-024, 9/13/13]
MaineNo.Yes.14 [Me. Rev. Stat. Ann. §650-A]Yes.15 [Me. Rev. Stat. Ann. §650-B]• If married on the last day of 2012, same-sex spouses must file as:
- married filing jointly or
- married filing separately.
[Tax Alert Dec. 2012]
MarylandNo.Yes.16Yes.17Single; head of household.18 [Frequently Asked Questions about Income Taxes: Can same-sex couples who are legally married in another state file a joint return tax return in Maryland?]
MassachusettsNo.Yes.19Yes.20• Same-sex spouses must file as:
- married filing jointly or
- married filing separately.
• May not file as head of household. [Technical Information Release TIR 04-17, 7/7/04]
MichiganYes. [Mich. Const. art. I, §25 (1963)]No. [Mich. Comp. Laws §551.1]No. [Mich. Comp. Laws §551.271]Single; head of household. [Press Release, 9/19/13]
MinnesotaNo. [Minnesota voters did not vote in favor of a constitutional ban.]Yes. [Minn. Stat. §§517.01, 517.03(a)(4)]Yes. [Minn. Stat. §518.01]Minnesota requires all taxpayers to use the same filing status on their state return as on their federal return. [News Release, 9/3/13]
MississippiYes. [Miss. Const. art. 14, §263A (1890)]No. [Miss. Code Ann. §93-1-1]No. [Miss. Code Ann. §93-1-3]Single; head of household.
MissouriYes. [Mo. Const. art. I, §33 (1945)]No. [Mo. Rev. Stat. §§451.010, 451.022]No. [Mo. Rev. Stat. §451.022]Single; head of household.
MontanaYes. [Mont. Const. art. XIII, §7 (1889)]No. [Mont. Code Ann. §§40-1-103, 40-1-401]No. [Mont. Code Ann. §40-1-401]Single; head of household.
NebraskaYes. [Neb. Const. art. I, §29 (1875)]No.21 [Neb. Rev. Stat. §42-101]No.22 [Neb. Rev. Stat. §42-117]Single; head of household.
NevadaYes. [Nev. Const. art. 1, §21 (1864)]No recognition of same-sex marriage.
However, recognizes domestic partnerships. [Nev. Rev. Stat. §§122.010, 122.020]; [Nev. Rev. Stat. §§ 122A.040, 122A.510]
Yes.23 [Nev. Rev. Stat. §122A.500]• Does not have a personal income tax.
• Because Nevada is a community property state, once the domestic partnership is registered, each partner's income is 1/2 of the entire couple's income. Thus, this will be the amount reported on each partner's federal return, even though they would still be filing as single or head of household. [IRS Publication 555 (March 2012)]
New HampshireNo.Yes.24 [N.H. Rev. Stat. Ann. §457:1-a]Yes. [N.H. Rev. Stat. Ann. §457:3]• Does not have a personal income tax, but has a number of other taxes, such as individual's interest and dividends income, inheritance, business taxes, and consumer excise taxes.
• For tax year 2008, partners of a civil union were able to use a married filing status. [TIR 2008-001, 3/408]
• As of Jan. 1, 2010, same-sex marriages replaced civil unions and as of Jan. 1, 2011, all civil unions in the state became legal marriages. [TIR 2010-010, 11/15/10]
New JerseyNo.Yes.25 [N.J. Rev. Stat. §§37:1-29, 37:1-30]Yes. [N.J. Rev. Stat. §37:1-34]• Beginning in 2007, civil union couples must file as:
- married/civil union (CU) couple filing jointly
- married/CU couple filing separately
- qualifying widow(er)/surviving CU partner
or
- qualifying head of household
• May not file as single. [Bulletin GIT-4]
New MexicoNo.Unclear.26 [N.M. Stat. Ann. §40-1-1]Probably.27 [N.M. Stat. Ann. §40-1-4]Single; head of household.
New YorkNo.Yes. [N.Y. Dom. Law §10]Yes. [Marriage Equality in New York City: Questions and Answers for Same-Sex Couples and All Those Who Wish to Marry Here]• Beginning in 2011, same-sex spouses must file as:
- married filing jointly or
- married filing separately.
• They may amend a prior year return using a married filing status. [TSB-M-13(5)I, (10)M, 9/13/13]
• Same-sex couples married in another state prior to July 24, 2011 may not use a married filing status prior to tax year 2011. [TSB-M-11(8)C, 7/29/11]
North CarolinaYes. [N.C. Const. art. XIV, §6 (1971)]No.28 [N.C. Gen. Stat. §51-1.2]No. [N.C. Gen. Stat. §51-1.2]Single; head of household.
North DakotaYes. [N.D. Const. art. XI, §28 (1889)]No. [N.D. Cent. Code §14-03-01]No. [N.D. Cent. Code §14-03-08]Single; head of household.
OhioYes. [Ohio Const. art. 15, §11 (1851)]No.29 [Ohio Rev. Code Ann. §3101.01]
No. [Ohio Rev. Code Ann. §3101.01]Single; head of household.
OklahomaYes. [Okla. Const. art. 2, §35 (1907)]No.30 [Okla. Stat. Ann. tit. 43, §3]No. [Okla. Stat. Ann. tit. 43, §3.1]Single; head of household.
OregonYes. [Or. Const. art. XV, §5a (1857)]Yes, only domestic partnerships.31 [Or. Rev. Stat. §§106.010 and 310]Yes, only domestic partnerships. [Or. Rev. Stat. §106.340]• Beginning in 2008, registered domestic partners must file as:
- registered domestic partners filing jointly or
- registered domestic partners filing separately.
• May not file as single. [Registered Domestic Partners in Oregon: Filing your Oregon income tax return]
PennsylvaniaNo.No. [Pa. Stat. §§1102, 1704]No. [Pa Stat. §1704]Single; head of household.
Rhode IslandNo.Yes. [R.I. Gen. Laws §15-3.1-1]Yes.32 [R.I. Gen. Laws §15-3.1-8]; [Executive Order 12-02]Same-sex married couples will be able to claim the “married filing jointly” filing status on their Rhode Island personal income tax returns for 2013 and later tax years if they are married as of the last day of the calendar year. [Advisory 2013-20, 9/6/13]
South CarolinaYes. [S.C. Const. art. XVII, §15 (1895)]No. [S.C. Code Ann. §20-1-15]No.33 [S.C. Code Ann. §20-1-15]Single; head of household.
South DakotaYes. [S.D. Const. art. 21, §9 (1889)]No.34 [S.D. Codified Laws Ann. §25-1-1]No. [S.D. Codified Laws Ann. §25-1-38]Single; head of household.
TennesseeYes. [Tenn. Const. art. XI, §18 (1870)]No. [Tenn. Code Ann. §36-3-113]No. [Tenn. Code Ann. §36-3-113]Single; head of household.
TexasYes. [Tex. Const. art. I, §32 (1876)]No. [Tex. Fam. Code Ann. §2.001]No. [Tex. Fam. Code Ann. §1.103]Single; head of household.
UtahYes. [Utah Const. art. I, §29 (1895)]No. [Utah Code Ann. §§30-1-2, 30-1-4.1]No. [Utah Code Ann. §§30-1-4, 30-1-4.1]Single; head of household.
VermontNo.Yes. [Vt. Stat. Ann. tit. 15, §8; Vt. Stat. Ann. tit. 15, §1202]Yes. [Vt. Stat. Ann. tit. 15, §8; Vt. Stat. Ann. tit. 15, §1204]• Same-sex spouses and civil union partners must file as:
- civil union/married filing jointly or
- civil union/married filing separately.
• May not file as single.
[Technical Bulletin TB-55, 10/7/10]
VirginiaYes. [Va. Const. art. I, §15A (1971)]No. [Va. Code Ann. §20-45.2]No. [Va. Code Ann. §20-45.3]Single; head of household.
WashingtonNo.Yes. [Wash. Rev. Code §26.04.010]Yes.35 [Wash. Rev. Code §26.04.020]Does not have a personal income tax.
West VirginiaNo.No.36 [W.Va. Code §48-2-401]No. [W.Va. Code §48-2-603]Single; head of household.
WisconsinYes. [Wis. Const. art. XIII, §13 (1848)]No recognition of same-sex marriage.37 [Wis. Stat. §765.01]
Allows domestic partnerships. [Wis. Stat. §770.05]
No. [Wis. Stat. §765.04]Single; head of household.
Same-sex taxpayers filing their 2012 federal income tax return using a filing status of married filing jointly, and filing original federal and Wisconsin returns with the state on or after Sept. 16, 2013 must file Schedule S, Allocation of Income to be Reported by Same-Sex Couples Filing a Joint Federal Return. [News for Tax Professionals - Tax Guidance For Individuals In A Same-Sex Marriage, 9/6/13]
WyomingNo.No. [Wyo. Stat. §20-1-101]Unclear.38 [Wyo. Stat. §20-1-111]Does not have a personal income tax.

1 183 P.3d 384 (Cal. 2008).

2 207 P.3d 48 (Cal. 2009).

3 704 F. Supp.2d 921 (N.D. Cal. 2010), aff'd sub nom.Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), cert. granted sub nom.Hollingsworth v. Perry, no. 12-144 (2012).

4 People who entered into same-sex marriages in other jurisdictions on or after Nov. 5, 2008, are entitled to receive same benefits as spouses with the sole exception of the designation of “marriage.”

5 Does not expressly prohibit, but treated as invalid because a valid marriage is only between one man and one woman.

6 Marriage is defined as the legal union of two persons. As of Oct. 1, 2010, all civil unions converted to marriages by operation of law.

7 The legislature shall have the power to reserve marriage to opposite-sex couples.

8 Does not expressly prohibit, but treated as invalid because a marriage contract shall be only between a man and a woman.

9 Does not expressly prohibit, but treated as invalid because a marriage is a personal relation arising out of a civil contract between a man and a woman.

10 Treats as civil unions same-sex unions from other jurisdictions.

11 Although the statute treats same-sex marriage as invalid, the Supreme Court of Iowa in Varnum v. Brien,763 N.W.2d 862 (Iowa 2009) ruled the statutory ban violated the equal protection of Iowa's constitution.

12Id.

13 Does not expressly prohibit, but treats as invalid because a marriage is a civil contract between two parties of the opposite sex.

14 An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom, providing that marriage is a legally recognized union between two people, was signed by the governor on May 6, 2009. By referendum, 51.5 percent of Maine voters voted in favor of the law, effective Dec. 29, 2012.

15Id.

16 The Civil Marriage Protection Act, providing that a marriage is between two individuals, was signed by the governor on March 1, 2012. By referendum, 52.4 percent of Maryland voters voted in favor of the law, effective Jan. 1, 2013.

17 In May, 2012, the Court of Appeals of Maryland ruled same-sex marriages from other states must be recognized as valid in Port v. Cowan, 44 A.3d 970 (Md. 2012).

18 Maryland has not changed its tax laws to correspond to the recently enacted law.

19 In the 2003 case Goodridge v. Massachusetts Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003) held it was unconstitutional to allow only opposite-sex couples to marry.

20Hunter v. Rose, 463 Mass. 488 (Mass. 2012); Elia-Warnken v. Elia, 463 Mass. 29 (Mass. 2012).

21 Although the statute states that marriage is a contract between consenting parties, the constitutional ban invalidates same-sex marriage.

22 Although the state recognizes valid marriages from other jurisdictions, the constitutional ban invalidates same-sex marriage.

23 Recognizes as a domestic partnership any legal union between persons from other jurisdictions.

24 Allows same-sex marriage. Statutes relating to domestic unions were repealed.

25 Civil unions were legalized in December 2006, effective Feb. 19, 2007.

26 Marriage is defined as a valid contract for consenting parties. However, in 2004, 66 marriage licenses issued to same-sex couples were later invalidated that same day by the New Mexico Atty. Gen. Patricia Madrid.

27 New Mexico's statute recognizes valid marriages from other jurisdictions. In 2011, Atty. Gen. Gary King stated, “While we cannot predict how a New Mexico court would rule on this issue, after review of the law in this area, it is our opinion that a same-sex marriage that is valid under the law of the country or state where it was consummated would likewise be found valid in New Mexico.” http://www.scribd.com/doc/46294643/4-Jan-11-Rep-Al-Park-Opinion-11-01-1.

28 Prohibited, however, a number of cities and counties allow domestic partnerships.

29 Prohibited, however, some cities allow domestic partnerships.

30 Does not expressly prohibit, but treated as invalid because an unmarried person is capable of contracting and consenting to marriage with a person of the opposite sex.

31 Does not expressly prohibit, but treated as invalid because a marriage is a civil contract between a male and a female.

32 Executive Order 12-02 stated Rhode Island would recognize same-sex marriages, civil unions, or registered domestic partnerships valid in other jurisdictions.

33 Although the state recognizes valid marriages from other jurisdictions, the constitutional ban invalidates same-sex marriage.

34 Does not expressly prohibit, but treated as invalid because a marriage is a personal relationship between a man and a woman arising out of a civil contract.

35 Treats valid same-sex legal unions from other jurisdictions as domestic partnerships.

36 Does not expressly prohibit, but treated as invalid because solemnization is a formal act by which a man and a woman contract to marriage and assume the status of husband and wife.

37 Does not expressly prohibit, but treated as invalid because marriage is a legal relationship between two equal persons, a husband and wife.

38 Unclear because recognizes valid marriages from other jurisdictions.