Every state that collects income tax recognizes same-sex marriage for tax purposes, and so does the federal government. Since the Supreme Court’s 2015 decision in Obergefell v. Hodges, all 50 states and the District of Columbia must license and recognize marriages between same-sex couples, and that recognition carries straight through to how you file.1Justia. Obergefell v. Hodges, 576 U.S. 644 (2015) If you’re legally married, you file with a married status on both returns. The real question is what that status does to your tax bill.
How Universal Recognition Happened
Federal recognition came first. In 2013, the Supreme Court struck down Section 3 of the Defense of Marriage Act in United States v. Windsor, clearing the way for the federal government to treat same-sex couples as married.2Justia. United States v. Windsor, 570 U.S. 744 (2013) Later that year, the IRS issued Revenue Ruling 2013-17, confirming that any same-sex couple legally married in a jurisdiction authorizing such marriages would be treated as married for all federal tax purposes, regardless of where they later lived.3Internal Revenue Service. Revenue Ruling 2013-17
That left a gap at the state level. A couple married in New York but living in a non-recognizing state could be married federally and unmarried locally. The 2015 Obergefell ruling closed the gap by holding that the Fourteenth Amendment requires every state to license same-sex marriages and recognize those performed elsewhere. Nine states have no personal income tax, so filing status is a non-issue there. Everywhere else, a legally married same-sex couple files with a married status.
Which Filing Status You Use
Your marital status on December 31 fixes your filing status for the whole year. If you’re legally married on that date, the IRS generally gives you two choices: married filing jointly or married filing separately.4Internal Revenue Service. Filing Status Filing as single is not an option. Every state that collects income tax follows the same rule on the state return.
There is one carve-out. A married person who lived apart from their spouse for the entire last six months of the year, maintained a home for a dependent child, and files a separate return can qualify as head of household.5Office of the Law Revision Counsel. 26 USC 7703 – Determination of Marital Status That status comes with wider brackets and a larger standard deduction than married filing separately, so it matters for couples who are separated but not yet divorced.
Most married couples file jointly because the tax usually comes out lower. Filing separately uses narrower brackets and locks you out of several credits and deductions, including the earned income tax credit and education credits. Separate filing tends to help only in specific situations, such as one spouse having large medical expenses that need a lower AGI to deduct, or one spouse wanting to stay clear of the other’s tax liability.
The Marriage Bonus and Marriage Penalty
Being recognized as married is not always a win at tax time. When one spouse earns much more than the other, joint filing often shifts income into lower brackets and produces a marriage bonus. A couple with one partner earning $150,000 and the other earning $30,000 will usually pay less combined tax than two single filers with those same incomes.
The opposite can happen when both spouses earn similar amounts. Two $90,000 incomes combined on a joint return can land in higher brackets than either would face alone. That’s the marriage penalty. Congress has narrowed it by widening the joint brackets at most income levels, but it still appears at higher incomes and inside the phase-out ranges for certain credits. Running the numbers both ways is worthwhile before you commit to joint or separate filing.
Community Property States If You File Separately
If you file separately, where you live changes how income gets split between the two returns. Nine states follow community property rules, under which most income earned by either spouse during the marriage belongs equally to both: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.6Internal Revenue Service. Publication 555 – Community Property
In those states, each spouse filing separately reports half of the couple’s total community income, regardless of who earned it. If one spouse earned $120,000 and the other earned nothing, each reports $60,000. You also attach Form 8958 showing how you divided the income. The same split applies to the state return.
Every other state uses a common law system. Income belongs to the spouse who earned it, so separate filing is simpler: each person reports their own wages.
Civil Unions and Domestic Partnerships Are Not the Same
Recognition for tax purposes depends on legal marriage. The IRS does not treat civil unions or registered domestic partnerships as marriages, even where a state grants them marriage-like rights.7Internal Revenue Service. Answers to Frequently Asked Questions for Registered Domestic Partners and Individuals in Civil Unions Partners in these arrangements file their federal returns as single, or as head of household if they qualify.
Some states that offer domestic partnerships or civil unions allow partners to file state returns with a married status. That forces an awkward two-track process: the couple prepares a hypothetical joint federal return to generate the figures used on the state return, then files actual federal returns as single individuals. Professional help often pays for itself in that situation.
Registered domestic partners in California, Nevada, and Washington have an added complication. Those states extend community property rules to domestic partnerships, so the IRS requires registered partners there to split community income on their federal returns even though they file as single.6Internal Revenue Service. Publication 555 – Community Property Each partner reports half of the combined community income.
Estate and Gift Tax Benefits
Recognition reaches well past the annual return. Two provisions can save married couples large sums over a lifetime.
The unlimited marital deduction lets you transfer any amount of property to your spouse during life or at death without triggering gift or estate tax. There’s no cap. A $5 million transfer to a spouse costs nothing in gift tax and does not reduce your lifetime exemption.8Office of the Law Revision Counsel. 26 USC 2523 – Gift to Spouse The same unlimited deduction covers property passing to a surviving spouse through an estate.9Office of the Law Revision Counsel. 26 USC 2056 – Bequests to Surviving Spouse Before Windsor and Obergefell, same-sex spouses were shut out. The Windsor case itself arose when Edith Windsor received a $363,000 federal estate tax bill after her wife died, a bill that would have been zero had their marriage been federally recognized.
Portability of the estate tax exemption is the second major benefit. The federal estate tax exemption for 2026 is $15,000,000 per person.10Internal Revenue Service. Estate Tax When the first spouse dies, any unused portion can pass to the surviving spouse, doubling the couple’s combined shield to $30,000,000. Unmarried couples cannot use portability.
For gifts to anyone other than a spouse, the annual exclusion for 2026 is $19,000 per recipient.11Internal Revenue Service. What’s New – Estate and Gift Tax Married couples can elect gift splitting and combine their exclusions, giving up to $38,000 per recipient without filing a gift tax return.
Amending a Return Filed with the Wrong Status
After Windsor, the IRS allowed legally married same-sex couples to amend prior returns to file as married and claim refunds.12Internal Revenue Service. Same-Sex Marriages Now Recognized for Federal Tax Purposes The general refund statute of limitations is three years from the date you filed the original return or two years from when you paid the tax, whichever is later. The window to recover overpayments from the pre-recognition years has closed for most couples. If you recently married and filed with the wrong status, though, you can still amend within that three-year window.