Keith Mack
Common-law marriages are recognized for federal income tax purposes in the US if they are recognized by the state in which the taxpayers reside. If the taxpayers later move to a state that does not recognize common-law marriages, they are still considered married for federal income tax purposes. However, most states do not recognize common-law marriages, and in these states, couples are not permitted to file as a married couple. Common-law marriages are recognized in Texas, for example, but not in Pennsylvania. If a couple is recognized as common-law married by their state, they can file as married filing jointly (MFJ). However, there are potential repercussions if the couple separates, as they will need to go through a divorce like any other married couple.
Characteristics and Values of Filing Taxes as Common Law
| Characteristics | Values |
|---|---|
| Common-law marriages recognized for federal income tax purposes | If recognized by the state in which taxpayers reside |
| Common-law marriages recognized by the IRS | If recognized by the state |
| States recognizing common-law marriages | Texas, New Hampshire (for inheritance purposes only) |
| States not recognizing common-law marriages | Pennsylvania |
| Joint tax return | Tax liability becomes "joint and several" |
| Tax filing status | MFJ (Married Filing Jointly) or MFS (Married Filing Separately) |
| Common-law marriage requirements | Varies by state; may include living together for a certain period, holding themselves out as married to the public, etc. |
| Common-law divorce | Not legally recognized; a legal divorce is required to dissolve the marriage |
| Impact on Social Security benefits | May affect benefits, seek expert advice |
| Back taxes | May inherit each other's back tax debt |
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What You'll Learn
Common-law marriage recognition by state
In the United States, common-law marriage, also known as sui juris marriage, informal marriage, or marriage by habit and repute, is a form of irregular marriage that is only recognised in a minority of states. These include Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
Common-law marriages are recognised for federal income tax purposes if they are recognised by the state in which the taxpayers reside. If a couple moves to a state that does not recognise common-law marriages, they are still considered married for federal income tax purposes.
Each state that recognises common-law marriage has certain tests that must be followed to establish the relationship. For example, in Colorado, the Supreme Court has ruled that a common-law marriage may be established by the mutual assumption of a marital duty, without the need for a ceremonial marriage. However, in Utah, a couple must have their relationship validated by a court or administrative order, which includes requirements such as being of legal age and capable of giving consent, cohabiting, and holding themselves out as married.
It is important to note that most states do not recognise common-law marriages. In these states, couples are not permitted to file tax returns as a married couple, even if they have been cohabiting for an extended period. Therefore, it is essential to check the specific laws and requirements of your state to understand how common-law marriage is recognised and how it may impact your tax filings.
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Joint tax return filing
When it comes to filing taxes as a common-law couple, it's important to first understand how your state defines and recognizes common-law marriages. In the United States, common-law marriages are recognized differently from state to state. Therefore, it is crucial to check your specific state's laws and requirements. Most states do not recognize common-law marriages, and if you live in one of those states, you are not permitted to file taxes as a married couple.
However, if you reside in a state that does recognize common-law marriages, such as Texas, your common-law marriage will be recognized for federal income tax purposes. In such cases, you would be required to file your taxes as a married couple, and you may choose to file jointly or separately. It is worth noting that once you hold yourself out as married under common law, you are considered married for all purposes, not just tax purposes.
When filing jointly, your tax liability becomes "joint and several," meaning that each of you is individually responsible for the taxes in full. Additionally, it's important to remember that if you are recognized as common-law married, you must consistently file your taxes as married, and you cannot choose to file as single in certain situations or tax years.
While filing jointly as a common-law married couple, it is important to consider any potential repercussions in the event of a future separation. Unlike traditional marriages, there is no such thing as a common-law divorce. Therefore, if you separate, you will need to go through the legal divorce process, just like any other married couple.
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Common-law marriage and survivor benefits
In the United States, common-law marriage is recognised by the Social Security Administration (SSA) as long as it is established in a state that permits it. The SSA recognises a valid common-law marriage in the same way as a traditional marriage, and common-law spouses are entitled to the same benefits, including spousal and survivor benefits.
To be eligible for benefits based on your common-law spouse's earnings, you must provide evidence to prove that you were in a valid common-law marriage. This is because the requirements for a common-law marriage are not always easy to achieve, and many people assume incorrectly that a common-law marriage is sealed after a certain period of cohabitation. The requirements for a common-law marriage are that:
- You lived in a state that recognises common-law marriage when your marriage began.
- You had the legal capacity to get married (e.g. being old enough and not being married to anyone else).
- You both intended to be married, despite not having a ceremony or license.
- You took actions that demonstrated that intention, such as living together, sharing income and expenses, and holding yourselves out as a married couple to family, friends, and the community.
If both spouses are alive, you will need to provide statements from each spouse affirming the marriage, as well as statements from a blood relative of each spouse. If your spouse has died, you will need to provide your own statement affirming the marriage, along with statements from two blood relatives of your deceased spouse. In some circumstances, other evidence may be used to support your claim, such as a determination by a court or another agency that you had a valid common-law marriage.
It is important to note that the rules in each state vary on what is required to have a recognised common-law marriage, and there is no such thing as a "common-law divorce". If you move to another state after establishing a common-law marriage in a state that allows them, your new state of residence must recognise your marriage. This means that you may get Social Security survivors or spouses' benefits in any state, as long as your common-law marriage was created in a state that permitted it.
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Common-law marriage and tax liability
Common-law marriages are recognised for federal income tax purposes if they are recognised by the state in which the taxpayers reside. If the taxpayers later move to a state that does not recognise common-law marriages, they are still considered married for federal income tax purposes.
A small number of states recognise common-law marriages. Even in these states, it is not enough to simply live together for a certain amount of time. Instead, the couple must hold themselves out to the public as married persons. Each state that recognises common-law marriage sets forth certain tests that must be followed to establish the relationship.
If you are recognised as common-law married by your state, you can file as married filing jointly (MFJ). This is only a problem for states that do not recognise common-law marriages. One way to be in a common-law marriage in Texas is by signing a document and submitting it. The other way is to hold yourself out as being married. Filing a joint tax return would fulfil that element.
If you are common-law married, you cannot get a common-law divorce. A legal marriage, common law or otherwise, must be legally dissolved to no longer be valid. If you have held yourself out as common-law married, you'll need to get a divorce to no longer be married.
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Common-law marriage and back taxes
If you are in a common-law marriage, you must file your taxes as married. Common-law marriages are recognised for federal income tax purposes if they are recognised by the state in which the taxpayers reside. If the taxpayers later move to a state that does not recognise common-law marriages, they are still considered married for federal income tax purposes. However, if the taxpayers begin and maintain their relationship in a state that does not recognise common-law marriages, they will not be considered married.
Most states do not recognise common-law marriages, so if you live in one of these states, you are not permitted to file as a married couple. A minority of states do recognise common-law marriages, but even in these states, it is not enough to simply live together for a certain amount of time. Instead, the couple must hold themselves out to the public as married persons. Each state that recognises common-law marriage sets forth certain tests that must be followed to establish the relationship.
If you are in a common-law marriage and file a joint tax return, your tax liability becomes "joint and several", meaning that you are each responsible for the taxes in full. There is no such thing as a common-law divorce, so if you separate, you will need to get divorced with all the property and support obligations that entails.
It is important to note that the word "marriage" in federal law refers only to a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex. Therefore, same-sex spouses, even if married under state law, would not be considered married for federal tax purposes.
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Frequently asked questions
Common-law marriage is a legal marriage that does not require a marriage license or certificate. Common-law marriages are recognized for federal income tax purposes if they are recognized by the state in which the taxpayers reside.
If you are recognized as common-law married by your state, you can file as married filing jointly (MFJ). However, if you separate, you will need to get a divorce like any other married couple. Additionally, when you file a joint tax return, your tax liability becomes "joint and several," meaning you are each responsible for taxes in full.
Common-law marriages are only recognized in a minority of states, including Texas. To find out if your state recognizes common-law marriage, you should do a google search or consult a lawyer or financial advisor.
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