Can We File Our Taxes as Married?
Answered by Lara Schwartz, senior counsel for the Human Rights Campaign. Jan. 22, 2004.
Q: Dear Lara,
My partner and I got married in Canada this year but we both reside in Maryland. Can we file our taxes as married or do we have to file as single?
Sincerely,
Anabel
A: Dear Anabel,
Congratulations on your marriage. Tax time presents couples who marry in Canada with unique challenges, both at the state and federal levels.
Federal Taxes: In spite of the universal legal rule that a marriage that’s valid where celebrated – as yours was – is valid everywhere, it is fairly certain that the federal government will not accord your marriage the respect it deserves and you will not be considered married for federal tax purposes. This is because a 1996 law called the Defense of Marriage Act (DOMA) defines marriage under federal law to include only opposite-sex couples. DOMA discriminates uniquely against same-sex couples; for all other couples, marital status is determined by the law of the taxpayer’s state of residence.
DOMA not only means that you and the partner whom you married in Canada are not recognized as spouses entitled to file joint tax returns – it also affects your eligibility for more than federal benefits and protections, including Social Security survivors’ benefits, family and medical leave and many others. [For more information about the cost of DOMA to LGBT people, see Rights and Protections Denied Same-Sex Partners].
Maryland Taxes: Although Maryland is not among the 37 states that have passed laws refusing to recognize marriages by same-sex couples from other jurisdictions, the state’s law does state that only marriages between a man and a woman are valid. See Md. Fam. Law. Code. Ann. § 2-201 (2002). [For more information about the cost of DOMA to LGBT people, see the list of states with an anti-gay marriage laws].
Thus, Maryland is also likely to discriminate against your marriage and require you to file separate tax returns.
Extra Steps You Can Take to Protect Yourselves: For most taxpayers, the amount of tax that is owed changes significantly depending upon whether they file jointly or individually. For instance, most two-earner couples will owe fewer state and federal taxes if they file as individuals. Single-earner couples, however, receive a significant "marriage bonus" if they are permitted to file joint tax returns. Because the IRS penalizes taxpayers who underpay, you might want to consider alerting the IRS that you are married but that your marriage is not recognized by federal or Maryland law when you file your tax return.
For more information, see the Gay & Lesbian Advocates & Defenders fact sheet, What Do I Need To Know About Getting Married In Canada?