Do You File Jointly if You're in a Common Law Marriage?
Content provided for general information. Talk to your advisor to learn about recent updates or other rules that may apply to your situation.
If you’re in a common law marriage, you should probably file as married (jointly or separately). Here’s how it works.
Does the IRS recognize common law marriages?
The IRS generally doesn’t make rules about who is and isn’t married. It goes by state law.
If you’re in a state that recognizes common law marriages, the IRS will generally recognize your common law marriage if your state considers you married under common law.
If you’re in a state that doesn’t recognize common law marriages, the IRS generally won’t recognize you as married.
If you move from a state with common law marriage to one without common law marriage, the state you move to will generally recognize your common law marriage as long as you were legally considered married in the state you moved from. So the IRS will still typically recognize you as married.
What tax filing status do you use if you’re in a common law marriage?
If you’re in a legal common law marriage, you generally need to file as married filing jointly or married filing separately.
Jointly is when two spouses file using the same tax returns. Separately is when they file two different tax returns. Each status may give different tax benefits in different situations, and you can choose which way is best for you.
As a general rule, you do not have the option to file as single or head of household if you’re in a legal common law marriage. Married couples generally have to file as married, with the main exception being if you’re in the process of legal separation or divorce.
What if you’re not sure if you’re in a common law marriage?
Common law marriages naturally have a gray area. You usually don’t need to take any official legal steps, and whether you’re married is based on how you live and present yourselves to the world.
In fact, if you ever get in a legal dispute over whether you’re married, whether you file joint tax returns might become a deciding factor.
It would probably take a pretty unusual situation for the IRS to audit two people who weren’t filing as married and say they’re in a common law marriage. The main exceptions would likely be if there’s been a prior legal determination that you were married (e.g., a court case or insurance settlement), you own assets as a recognized married couple, or you tried to file married in some years but not others.
However, you probably want to decide if you’re in a common law marriage for legal reasons. These can include estate planning, being able to make medical decisions, or having divorce rights.
Talk to a family lawyer to get help deciding if you meet the legal requirements for a common law marriage or if it benefits you to make sure your marriage is legally recognized.
If you do determine that you’re in a common law marriage, your proper tax filing status will usually be either married filing jointly or married filing separately.