Who Will the IRS Consider Married for Tax Purposes?

This is a critical question to answer before filing 2013 income taxes, and we expect guidance from the IRS on this point. There may be a period of uncertainty because under current IRS practice, a person can file his or her income tax return as “married filing jointly” or “married filing separately” if the individual is considered married in his or her state of domicile. That practice seems to suggest that only people in states that license or recognize marriages of same-sex couples and in D.C. can expect to be treated as married by the IRS. However, there is no statute or regulation requiring this approach. In addition, the IRS does not always follow this practice. For example, the IRS recognizes “common law” marriages for federal tax purposes no matter where a couple lives as long as their marriage was valid where entered. This will likely be an evolving area of law.