Know Your Rights: DOMA and Tax Season

Suzanne Artis on one of the many ways DOMA hurts her family at tax time:
"I don’t like to have to divide [my children] up. They’re not property, they’re my family."

by Bruce Bell, Legal InfoLine Manager

Like most of us right now, you are probably working on, or thinking about, filing your federal and state income tax returns.  For married same-sex couples, the Federal Defense of Marriage Act (DOMA) makes tax time extra stressful - as the New York Times pointed out yesterday. Because of DOMA, the federal government – and some states - will not allow you to file your taxes as the married couple or family that you are.

GLAD has led the fight to knock out DOMA through litigation and public education since same-sex couples first began marrying in 2004. Currently, we are orchestrating the critical friend-of-the-court briefing strategy in the DOMA challenge being heard by the Supreme Court this session, Windsor v. United States.  We anticipate that the Supreme Court will rule on DOMA’s constitutionality by the end of June. If DOMA is ruled unconstitutional, most of the federal discrimination married same-sex couples experience should end. 

See the end of this post for information on how you may be able to preserve a claim to a refund of federal taxes you over paid due to DOMA, if and when the law is finally declared unconstitutional.

But first, since we are still living with DOMA for now, we have put together a summary of how to file your state and federal taxes, with links to our more comprehensive resources.

Filing Federal Taxes

For federal taxes, wherever you live, you must file your federal income tax as “single” or as “head of household” if one of you meets the requirements for that status. However, GLAD recommends that you indicate in some way on your return that you are a same-sex married couple, since income tax returns can be used for a variety of purposes, such as getting a mortgage—and for that purpose it may be important that the mortgage company knows that you are married. For more information, see Navigating Income Taxes for Married Same-Sex Couples

DOMA hurts same-sex couples and families in many ways at tax time. In addition to not being able to file as “married,” and potentially paying higher taxes as a result, same-sex married couples must also pay a tax on any benefit an employer offers to the same-sex spouse of an employee, and when a same-sex couple divorces, the alimony one spouse pays to another is not an allowable deduction as it is for a different-sex married couple.  And for many, like the Artis family in the video above, the pain of having to ‘carve up’ the family by choosing which parent includes children on their tax form is as bad as, or worse than, any extra money DOMA costs.

Filing State Taxes

How you should file taxes in your home state depends on the way your home state’s tax law is structured, as well as the existence or non-existence of a state marriage restriction.

In New England

If you are married and live in Massachusetts, Connecticut, Vermont or Maine, you must file your state taxes as married (either as “married filing jointly” or “married filing separately”).  Since filling out the state income tax form depends on bringing over figures from a federal form, you also need to complete a “married” federal income tax form in order to be able to fill out your “married” state tax form—this “dummy” federal form is only used to complete your state income taxes and never gets filed anywhere. 

New Hampshire has no state income tax and Rhode Island’s tax law requires the same filing status on the state tax form as is on the federal tax form, so if you live in Rhode Island you must complete your state income taxes using the same filing status as on your federal form (i.e. “single” or “head of household”).

For more information, or if you live outside New England, see Navigating Income Taxes for Married Same-Sex Couples.

Receiving Retroactive Benefits after DOMA

If DOMA is overturned and you are in the process of appealing a previous tax return, you may be eligible to receive a refund on the extra taxes you paid.  The IRS allows you to file amended income tax returns up to three years after the original return was filed.  For example, in most cases you can still file an amended return for the 2009 tax year provided the IRS receives it before this April’s filing deadline.

GLAD has prepared a publication, Tax Time and Preserving Your Federal Rights, which lists the steps to take if you want to try to preserve your right to a refund as a married couple for a previous year.

We know that this information can be confusing, which is why GLAD provides a free Legal InfoLine, where a friendly, knowledgeable volunteer can work with you one-on-one to answer any questions you have. Visit www.glad.org to contact us by email or live chat or call us at 800-455-GLAD (4523).

Of course, it’s always best to talk to a qualified tax expert about your particular situation. 

Good luck with your filing, and let’s hope this is the last year we have to share this information about DOMA and taxes!