same sex gay marriage tax problemsThere has been a lot of attention paid recently to the issue of same-sex marriage. In some states, same-sex couples can be married, and treated as married couples for state taxes purposes. It is important to understand, though, that there is a difference when it comes to federal law and federal taxes.

Federal law does not recognize same-sex marriage. As a result, filing your federal taxes as a same-sex couple means that you can’t actually file as a married couple. Here are a few facts to keep in mind when it comes to filing your federal tax return as a same-sex couple:

  • You can’t file as “married” in any form: Members of a same-sex couple, even if they are married in their state of residence, can’t file as married filing jointly or as married filing separately. Federal law does not recognize same-sex marriage, even if some states do.
  • Filing as “head of household”: If your only dependent is your same-sex partner, you cannot file as head of household. The IRS has a description as what constitutes a related individual for the head of household designation, and same-sex partners are not on that list.
  • What about other dependents?: Dependents can only be claimed on one tax return. So, you and your partner need to decide which of you will claim dependents on your tax form. This includes qualifying children. If both of you try to claim a dependent, that dependent will either be assigned to the person the dependent resides with most of the year, or to the partner with the highest AGI (if the child lives equally with each partner).
  • Claiming the adoption credit: The good news is that both partners can claim an adoption credit if they adopt together. However, the total amount claimed cannot be more the maximum available. So, if the adoption credit is $12,650 (as in 2012), that amount can be divided up as you would like, but when you add both your credit amounts together, it cannot exceed the maximum. However, each partner cannot receive more than he or she actually paid in adoption related expenses. $12,650 is the upper limit.
  • Adopting your partner’s child: Under federal law, you cannot claim the adoption credit for expenses incurred for adopting a spouse’s child. However, since federal law doesn’t recognize same-sex partners as spouses, if you adopt the child of your partner, you can claim the adoption credit for expenses incurred.

As you plan your taxes and prepare your tax returns, make sure you keep these facts in mind. If there is a portion of federal tax law that applies to married couples, it doesn’t apply to same-sex couples. Same-sex couples are treated as single taxpayers for purposes of federal income taxes. It doesn’t matter whether you are married in your state. While you will be able to file taxes as a married couple for your state return, you will not have the same ability with your federal return. If you have questions, you should speak with a qualified tax professional.