Can I file "Married Filing Jointly" claiming common law marriage?

To determine whether or not you can use a "Married Filing Jointly" filing status on your Federal tax return based on common law marriage, depends on the law in the jurisdiction where the marriage BEGAN.

Click here for information on "Same Sex Marriages."

The marital status of a common law husband and wife is NOT altered for federal tax purposes by their relocation to another jurisdiction that does not recognize common law marriages (Rev. Ruling 1958-1 CB 60).

Eleven states and the District of Columbia currently recognize common-law marriages. Each of these jurisdictions have unique requirements for common-law marriage:

• Alabama - The requirements for a common-law marriage are: (1) capacity; (2) an agreement to be husband and wife; and (3) consummation of the marital relationship.
   
• Colorado - A common-law marriage may be established by proving cohabitation and a reputation of being married.
   
• District of Columbia - The requirements for a common-law marriage are: (1) an express, present intent to be married and (2) cohabitation.
   
• Iowa - The requirements for a common-law marriage are: (1) intent and agreement to be married; (2) continuous cohabitation; and (3) public declarations that the parties are husband and wife.
   
• Kansas - For a man and woman to form a common-law marriage, they must: (1) have the mental capacity to marry; (2) agree to be married at the present time; and (3) represent to the public that they are married.
   
• Montana - The requirements for a common-law marriage are: (1) capacity to consent to the marriage; (2) an agreement to be married; (3) cohabitation; and (4) a reputation of being married.
   
• Oklahoma - To establish a common-law marriage, a man and woman must (1) be competent; (2) agree to enter into a marriage relationship; and (3) cohabit.
   
• Pennsylvania - A common-law marriage may be established if a man and woman exchange words that indicate that they intend to be married at the present time.
   
• Rhode Island - The requirements for a common-law marriage are: (1) serious intent to be married and (2) conduct that leads to a reasonable belief in the community that the man and woman are married.
   
• South Carolina - A common-law marriage is established if a man and woman intend for others to believe they are married.
   
• Texas - A man and woman who want to establish a common-law marriage must sign a form provided by the county clerk. In addition, they must (1) agree to be married, (2) cohabit, and (3) represent to others that they are married.
   
• Utah - For a common-law marriage, a man and woman must (1) be capable of giving consent and getting married; (2) cohabit; and (3) have a reputation of being husband and wife.

The states listed above may have their own specific requirements for common law marriage recognition. At a minimum, common law marriages must meet ALL of the following standards:

• Both individuals must have the legal capacity to marry,

• Both individuals must have the intent to be husband and wife and they must communicate this intent to each other,

• Both individuals must live with each other as husband and wife,

• Both individuals must publicly present themselves as husband and wife.

There is NO time limit for the standards listed above to occur. Also, the couple is NOT required to live with each other for a set number of years for a common law marriage to form.

Florida Law

Under Florida Statute 741.211, a common law marriage that BEGAN in the State of Florida AFTER January 1, 1968, would NOT be recognized and you may NOT file jointly on your Federal tax return.

If the common law marriage BEGAN in the State of Florida on or before December 31, 1967, the marriage IS recognized and you may file jointly on your Federal tax return.

Possible Loophole

If you are currently a resident of a State which does NOT recognize common law marriage, such as Florida BUT your common law marriage BEGAN in a State where common law marriages are RECOGNIZED, such as those states listed above, then you CAN file jointly under common law even though you are NO longer a resident of the State when the common law marriage BEGAN.

Other Information

Georgia allows a common law marriage created BEFORE January 1, 1997.

Idaho allows a common law marriage created BEFORE January 1, 1996.

New Hampshire allows a common law marriage for "inheritance purposes ONLY."

Ohio allows a common law marriage created BEFORE October 10, 1991.

As a general rule, individuals claiming to be joined together in a same sex economic relationship for federal tax purposes will NOT qualify for married filing status.

Although certain states and jurisdictions may have laws permitting same sex marriages, domestic partners will not be considered married for federal tax purposes. This stems primarily from legislation enacted in 1996 called the "Defense of Marriage Act" (Pubic Law 104-199). This Act provides in part that:

... In determining the meaning of any act of Congress or of any ruling, regulation, or interpretation of the various administrative bureaus or agencies of the United States, the word "marriage" means only 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 who is a husband or a wife.

In conclusion, taxpayers of the same sex who are married under a state law approving same sex marriages will NOT be considered married for federal tax purposes!

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