Claiming Common-Law Spouse As Dependent: What You Need To Know

The question of who can be claimed as a dependent is a common source of confusion for taxpayers. In the United States, the Internal Revenue Service (IRS) has strict rules about claiming tax dependents on tax returns. While some people seek to claim their common-law spouse as a dependent, this is not permitted by the IRS. However, common-law marriage is recognized in some states for the purposes of child support law. A dependent must be a qualifying child or qualifying relative, and there are specific tests to determine eligibility. These include age, relationship, residency, and financial support requirements.

Can I claim my common-law spouse as a dependent?

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Common-law marriage recognition

Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that is considered valid by both partners but is not formally recorded with a state or religious registry. It results from an agreement between two people to consider themselves married, followed by cohabitation, without a statutorily defined process.

The recognition of common-law marriages varies across different jurisdictions. In the United States, all jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction, although the Supreme Court has not fully articulated the extent to which the Constitution requires interstate marriage recognition. Nine states and the District of Columbia recognize common-law marriages, including Iowa, Kansas, Montana, New Hampshire, and Texas. In these states, common-law spouses who meet the requirements are entitled to financial benefits, such as Social Security and tax exemptions. However, common-law couples living in states that do not recognize this type of marriage cannot file joint tax returns with the IRS.

In Australia, the term "de facto relationship" is often used to describe relationships between any two persons who are not married but are living in certain domestic circumstances. While de facto relationships are recognized in the Family Law Act, they are regulated by a combination of federal and state/territory laws, and there is no federal recognition outside of Australia.

Internationally, common-law marriages or partnerships have limited recognition in Kuwait in specific cases, such as expatriate familial disputes, and the English-speaking Caribbean islands have statutes similar to those in England due to their colonial past. However, the term "common-law marriage" in England and Wales refers specifically to unmarried, cohabiting heterosexual couples.

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Qualifying as a dependent

To qualify as a dependent, a person must be a qualifying child or a qualifying relative. Qualifying children must be related to the taxpayer in one of the following ways:

• Son or daughter
• Stepchild
• Eligible foster child
• Brother, sister, half-brother, half-sister, stepbrother, or stepsister
• Adopted child or the child of any of the above

Qualifying children must be under the age of 19 or under 24 if they are a full-time student. There is no age limit if the child is permanently and totally disabled. They must also have lived with the taxpayer for more than half the year, with exceptions for temporary absences, and must not have provided more than half of their own financial support for the year.

Qualifying relatives include:

• In-laws such as daughter or son-in-law, father or mother-in-law, brother or sister-in-law
• Direct ancestors such as a father, mother, or grandparent, but not a foster parent
• Descendants of any of the above, such as a grandchild
• A brother or sister of the taxpayer's father or mother

Qualifying relatives do not have to live with the taxpayer all year, but they must meet the gross income test. This means that their gross income subject to tax must be less than $4,700 for the 2023 tax year and $5,050 for the 2024 tax year. The taxpayer must also provide more than half of the dependent's total support.

It is important to note that a spouse is never considered a dependent, and dependent-connected benefits cannot be claimed for a spouse.

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Tax benefits for spouses

In the United States, a spouse is never considered a dependent, and you cannot claim dependent-connected benefits for your spouse. However, there are several other tax benefits for spouses.

Firstly, there is the option to file taxes jointly or separately. When filing jointly, a married couple only needs to file one tax return, which can save time and money. On the other hand, filing separately means that each spouse must file their own return. The option chosen will depend on the couple's preference and what works best for them.

Secondly, there are income tax benefits for married couples. The tax brackets for married couples filing jointly are different from those for single individuals, and this can result in a lower tax rate for the couple. Additionally, a non-working spouse can benefit from their partner's income by contributing to their IRA, even if they have no earned income for the year. This is known as a spousal IRA contribution, and it allows the couple to maximize their retirement savings. The maximum spousal IRA contribution for 2024 is $14,000 ($7,000 each) if they are under 50 and $16,000 ($8,000 each) if they are 50 or older.

Furthermore, there are estate and gift tax savings available to married couples. These include increased estate tax exemptions for surviving spouses and the ability to make tax-free gifts between spouses. Additionally, the surviving spouse can inherit and treat the IRA as their own account, making additional contributions and taking advantage of the stretch IRA provisions.

While the tax benefits of marriage are numerous, it is important to note that everyone's tax situation is unique, and the impact of marriage on taxes can vary. It is always advisable to consult with a tax professional to understand how marriage will specifically affect your taxes.

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State-specific laws

In the United States, a spouse is never considered a dependent, and you cannot claim dependent-connected benefits for your spouse. However, you can claim one or more parents as dependents if they meet the qualifying relative tests.

Some people seek to claim their common-law spouse as a dependent on their federal tax return. Claiming a common-law spouse as a dependent entitles an individual to claim a dependency exemption. A dependency exemption permits a taxpayer to deduct money from counting as income. The amount of the exemption that can be deducted is the greater of either $1,100 or the sum of $350, added to the individual’s earned income. The deduction claimed cannot exceed the regular standard deduction amount.

To claim a common-law spouse as a dependent, an individual must demonstrate the following:

• No other person has claimed the common-law spouse as a dependent on their own tax return.
• The common-law spouse must be a United States citizen, national, or resident alien. Residents of Canada or Mexico may also qualify.
• The common-law spouse must have lived with you for the entire tax year for which you are claiming the deduction.

Only a handful of states recognize common-law marriage. These include:

• Colorado: Recognizes common-law marriage if, at the time the marriage is entered into, each party is 18 or older, and the marriage is not otherwise prohibited by Colorado law.
• Iowa: Recognizes common-law marriage for the purposes of child support law. A child whose parents hold themselves out as spouses by reason of common-law marriage is deemed legitimate, and family law rules governing legitimate children, child support, and child custody apply. In situations not involving child support, an Iowa court will find that a marriage is a valid common-law marriage if a party shows, by clear and convincing evidence, the presence of a general and substantial declaration that the parties are spouses.
• Kansas: Recognizes common-law marriage when two people agree to marriage without having the marriage formalized. The state will recognize the marriage if the couple considers itself married and publicly holds itself out to be married.
• Montana: Recognizes common-law marriage. For a couple to be regarded as being in a common-law marriage, each spouse must agree that they are married and must be "competent" to marry.
• New Hampshire: Permits common-law marriage, requiring the couple to cohabit and acknowledge each other as spouses for at least three years.
• South Carolina: The South Carolina Supreme Court abolished common-law marriage in July 2019, but common-law marriages entered into before the court’s decision were deemed valid.
• Texas: Recognizes common-law marriage. For a common-law marriage to exist, a couple must demonstrate that they agreed to be married, resided together in Texas as husband and wife, and represented themselves as married.

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Qualifying children

For tax purposes, a dependent is someone other than the taxpayer or spouse who qualifies to be claimed by someone else on a tax return. A dependent is someone who relies on another person for financial support. This typically includes children or other relatives.

It is important to note that you cannot claim your spouse as a dependent if you file jointly. You also cannot claim someone as a dependent if they are already claimed as a dependent on another tax return.

Frequently asked questions