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Columns: Tax Talk
George Saenz, CPA   Expert: George Saenz, CPA
Tax Talk
Tax filing status for common-law marriage
Tax Talk

Love, marriage and taxes

Dear Tax Talk:
I consider my partner as my common-law spouse. We have lived together for over 18 years and have a teenage son.

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I have always claimed our son as a dependent. My partner has always filed a separate tax return or none at all. My partner is now disabled and received Social Security disability for all of 2007 (less than $10,000).

I have paid all of the household expenses and I provided medical coverage for him through my employer. Can I claim him as a dependent? Am I obligated to pay any taxes that he might owe (he hasn't filed a return in a few years). What impact would claiming him as a dependent have on my return? I'm just wondering if it would be beneficial to claim him. Not sure if it would have any impact on your response, but we live in the state of Rhode Island.
-- JCS

Dear JCS,
You can claim your "spouse" as your dependent in certain cases. However, I think you need to file a joint return.

Your filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife. State law governs whether you are married or divorced.

Based on my reading, Rhode Island is considered a common-law marriage state. To be considered a common-law marriage, you have to have cohabitation and hold yourself out as married. The tax law states that a common-law marriage is considered married for purposes of filing a joint return.

If you previously filed as single, you may have filed incorrectly. It appears that you should have filed as married filing separate. You may need to amend your prior three years tax returns. Your status may also affect your common-law husband's Social Security disability either positively or negatively.

I recommend you speak to a local accountant or attorney familiar with Rhode Island common-law marriages and their affect on federal benefits and tax law.

Bankrate.com's corrections policy -- Posted: Feb. 1, 2008
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