Wednesday, June 26, 2013 the United States Supreme Court overturned the Defense of Marriage Act (DOMA).  Effective immediately,  married gay  couples will  be able to file their federal income tax returns using the married filing jointly tax status.  What does this mean for you?

 

The first thing to look at is:  Does it make sense to amend my back tax returns?  You’ll want to review your old returns as far back as 2010 to see if the married filing joint tax status would give you any tax benefit.  If so, you will need to amend those tax returns.

 

For tax years prior to 2010, you would have had to file a protective claim to file jointly, see:  http://robergtaxsolutions.com/2012/06/doma-unconstitutional-protecting-your-tax-rights/ Without a protective claim, you cannot file an amended return for years prior to 2010.

 

On your amended return (form 1040X) you will check the box that says Married Filing Jointly in the section that says “Amended return filing status.”  In the explanation box in Part III you will write:

 

pursuant to US v Windsor, this return is being amended to claim Married Filing Jointly tax status.

 

US v Windsor is the court case that the Supreme Court heard when they ruled that DOMA was unconstitutional.

 

You’ll complete the rest of the amended return just as you would any other 1040X form.

 

You are not required to amend your back tax returns if it does not help you.  Because those returns were filed using the law that was in place at the time, you are under no obligation to change your return if it would require you to pay more taxes.

 

Looking ahead:  now that federal law recognizes gay marriage, you may need to do some tax planning given your new status.  For many couples, the married filing jointly status is not beneficial.  I recommend sitting down with a professional and doing some planning, just that same as any other newly married couple would.  Remember, now that the federal government recognizes gay marriage, you are required to claim that you are married on your federal tax return.  You will either need to claim the Married Filing Jointly or Married Filing Separately tax status when you file your 2013 federal tax return.

 

Issues that have yet to be resolved: We know that if you are married in a state that recognizes gay marriage, you may file a federal joint income tax return.  What we don’t know yet is what happens to a couple that is legally married in a gay marriage state but moves to a state that doesn’t recognize gay marriage.  (For example:  a couple gets married in Illinois then moves to Missouri.)   I suspect we’ll see some court cases over that in the future.   I’ll post updates as I learn more.

 

If you’d like to read the court case, here’s a link:  http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf