Cecily Zamora
The recognition of common-law marriage varies across different states in the U.S. For federal income tax purposes, the IRS considers common-law marriages valid if the state in which the taxpayers reside recognizes it. In such cases, even if the couple moves to a state that does not recognize common-law marriages, they are still considered married for federal income tax purposes. However, if the common-law marriage is not recognized by the state, the couple will not be considered married for federal income tax purposes. The determination of marital status for tax purposes is based on state law, and each state that recognizes common-law marriage has specific tests or requirements that must be met to establish the relationship. These requirements often include the capacity to marry, mutual agreement to be married, and holding themselves out to the public as a married couple.
| Characteristics | Values |
|---|---|
| Recognition by the IRS | Common-law marriages are recognized by the IRS for federal income tax purposes if they are recognized by the state in which the taxpayers reside. |
| Requirements | The requirements for common-law marriage vary by state, but generally include the capacity to marry, a mutual agreement to be married, and holding themselves out to the public as married. |
| Tax Implications | In states that recognize common-law marriage, couples can file joint tax returns and claim spousal exemptions and deductions. |
| Lack of Recognition by the State | If a common-law marriage is not recognized by the state, the couple will not be considered married for federal income tax purposes. |
| Divorce | Common-law marriages that end in divorce are subject to the same tax rules as traditional marriages, and amended returns may need to be filed. |
| Same-Sex Marriage | Domestic partners and same-sex spouses may not be considered married for tax purposes, even in states that recognize these unions. |
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What You'll Learn
Common-law marriage requirements
In the United States, common-law marriage has existed since colonial times, when America was a colony of England. Common-law marriage is currently recognized in seven states and the District of Columbia.
The recognition of common-law marriage for federal income tax purposes depends on whether the state in which the taxpayers reside recognizes it. If the state recognizes common-law marriage, then the couple is considered married for tax purposes, even if they later move to a state that does not recognize such marriages.
The requirements for a common-law marriage vary by state, but some general requirements include:
- Living together: There is no statutory requirement for the length of time a couple needs to live together, but generally, the longer they live together, the stronger their case is for a common-law marriage.
- Legal right or "capacity" to marry: Both partners must have the legal capacity to marry, typically meaning they must be at least 18 years old, of sound mind, and not already married to other people.
- Intent: Both partners must intend to be married and behave as a married couple in front of friends, family, and the public.
In Texas, for example, same-sex couples can enter into a common-law marriage, and they can use the date they first satisfied all the requirements of an informal marriage as their legal marriage date. Couples in Texas can also register their common-law marriage by filing a declaration with the county clerk or use documents such as lease agreements, tax returns, and insurance policies to prove their marriage.
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Common-law marriage and tax filing
Common-law marriages are recognised for federal income tax purposes if they are recognised by the state in which the taxpayers reside. Taxpayers who are married in compliance with the laws of the state in which they are married are recognised as such for tax purposes, even if they later move to a state that does not recognise common-law marriage.
If a state recognises common-law marriage, a taxpayer in such a marriage is entitled to an exemption of $600 for their common-law wife when filing a separate income tax return, provided that the common-law wife has no gross income and is not the dependent of another taxpayer. For the purpose of filing a joint income tax return, a common-law wife in a state that recognises such marriages will be considered the taxpayer's spouse.
Each state that recognises common-law marriage sets forth certain tests that must be followed to establish the relationship. In Kansas, the couple must have the capacity to marry, agree to be married, and represent to the public that they are married.
It is important to note that if a common-law marriage is not recognised by the state in which the taxpayers reside, they will not be considered married for federal income tax purposes. Additionally, domestic partners and same-sex spouses are generally not considered married for tax purposes.
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Common-law marriage and divorce
Common-law marriages are recognised for federal income tax purposes if they are recognised by the state in which the taxpayers reside. Taxpayers who are married in compliance with the laws of the state in which they were married are recognised as married for tax purposes, even if they later move to a state that does not recognise common-law marriages.
The recognition of common-law marriages varies from state to state. For example, Rhode Island is one of nine states that still recognises common-law marriages as legally binding. Texas, on the other hand, has a two-year statute of limitations, meaning that if no party decides to petition for divorce within those two years, it is as if the couple was never married.
To be recognised as a common-law marriage, partners typically have to show that they were not already married to someone else and that they were of legal marriage age. Some states require couples to live together for a certain period, while others do not consider time cohabiting a factor. Other requirements include cohabitation, shared finances, and public acknowledgment of the relationship.
Divorcing a common-law marriage is similar to the legal divorce process for couples who are officially married. However, a key difference is that common-law marriages lack a paper trail, making it difficult to prove the existence of a marriage, which is necessary for divorce. If common-law couples do not obtain a formal divorce decree, they may be unable to legally marry again, and one partner could later claim assets from the marriage.
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Common-law marriage recognition by state
In the United States, common-law marriage is recognised in 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.
The recognition of common-law marriage varies from state to state. Some states have abolished it, but still recognise common-law marriages formed before a certain date or for specific purposes. For example, Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania recognise common-law marriages formed before 2017, 1968, 1997, 1958, 1991, and 2005, respectively.
To be recognised as a common-law marriage, couples must meet the requirements in their state. Generally, this includes being old enough to get married (usually 18 years old), having the mental capacity to marry, and intending to be married. Judges often decide this based on the couple's actions, such as how they present themselves to family, friends, and the community, and whether they use words like "husband" or "wife" when referring to each other.
For federal income tax purposes, common-law marriages are recognised if they are recognised by the state in which the taxpayers reside. If taxpayers begin and maintain a common-law marriage in a state that does not recognise it, they will not be considered married for tax purposes. However, if a couple moves to a state that does not recognise common-law marriage, their marriage will still be recognised for tax purposes if it was valid in the state where they previously resided.
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Common-law marriage and tax exemptions
The IRS recognises common-law marriages for federal income tax purposes if the state in which the taxpayers reside also recognises it. If a couple begins and maintains their relationship in a state that does not recognise common-law marriages, they will not be considered married.
If a common-law marriage is recognised by the state, the couple is considered married for federal income tax purposes, even if they later move to a state that does not recognise such marriages.
In the US, there are a minority of states that recognise common-law marriages. These include Texas and Kansas. However, it is not enough for a couple to simply live together for a certain amount of time. Instead, the couple must hold themselves out to the public as married persons. This can be done in various ways, including using the same last name and filing joint tax returns.
In Kansas, there are three essential elements to establishing a common-law marriage: the couple must have the capacity to marry, they must mutually agree to be presently married, and they must hold themselves out to the public as husband and wife.
For those in a common-law marriage in a state that recognises it, the common-law wife will be considered the taxpayer's spouse for the purpose of filing a joint income tax return. Additionally, under the provisions of section 151(b) of the Internal Revenue Code of 1954, the taxpayer may be entitled to an exemption of $600 for his common-law wife when making a separate income tax return, provided that she has no gross income and is not the dependent of another taxpayer.
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Frequently asked questions
The IRS recognizes common-law marriage for federal income tax purposes if the state in which the taxpayers reside recognizes it.
Common-law marriage is a form of legal marriage. A minority of states recognize common-law marriages. In these states, couples must hold themselves out to the public as married persons. This can be done by using the same last name and filing joint tax returns.
There are risks involved when filing jointly as a common-law married couple. If the couple separates, they will need to get divorced with all of the property and support obligations that entails.
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