What Are the IRS Common-Law Marriage Rules?

A common-law marriage is a legally recognized marital relationship between two individuals who have not obtained a marriage license or participated in a formal ceremony. For federal tax purposes, the Internal Revenue Service (IRS) has specific guidelines for how these unions are treated. The recognition of your marriage and your resulting tax obligations depend entirely on the laws of the state where you live. Understanding these rules is important for ensuring you file your federal income tax returns correctly and comply with federal law.

IRS Recognition of State-Established Common-Law Marriage

The Internal Revenue Service does not have its own federal definition of common-law marriage. Instead, it defers entirely to the laws of the states. If a couple meets the legal requirements for a common-law marriage in the state where the marriage begins, the IRS will consider them married for all federal tax purposes. This policy, outlined in Revenue Ruling 58-66, is based on the principle that your marital status for federal tax filing is determined by state law.

Only a handful of states currently permit the formation of new common-law marriages. If you reside in one of these states and satisfy its specific criteria for a common-law marriage, you are considered married in the eyes of the IRS.

• Colorado
• District of Columbia
• Iowa
• Kansas
• Montana
• Oklahoma
• Rhode Island
• Texas
• Utah

Several other states have abolished the formation of new common-law marriages but continue to recognize unions that were validly established before a specific date:

• Georgia (before January 1, 1997)
• Idaho (before January 1, 1996)
• Ohio (before October 10, 1991)
• Pennsylvania (before January 1, 2005)
• South Carolina (before July 24, 2019)

New Hampshire has a unique situation where it recognizes common-law marriage for inheritance purposes only, upon the death of one of the partners.

If you do not live in a state that permits or previously permitted common-law marriages under these conditions, you cannot establish one. The IRS will not recognize a relationship as a common-law marriage if the state where the couple lives does not legally recognize it as such. Relationships like civil unions or registered domestic partnerships are not considered marriages for federal tax purposes, even if they grant spousal-like rights at the state level.

Establishing Your Status for Federal Tax Purposes

Once a couple meets their state’s criteria for a common-law marriage, they are considered married for federal tax purposes and lose the option to file as single individuals. This means they are required to choose a married filing status on their federal income tax return. The only available filing statuses for a married couple are Married Filing Jointly or Married Filing Separately.

The determination of a valid common-law marriage hinges on meeting specific state-level requirements. While these vary, they generally include three fundamental elements. The couple must have a present agreement and intent to be married, they must cohabitate, and they must publicly present themselves to the community as a married couple. This public representation can include introducing yourselves as spouses, signing contracts together as a married couple, or having joint financial accounts.

The moment a state recognizes the marriage based on these facts and circumstances, the federal tax obligation as a married couple begins. This is not a choice; it is a matter of law. Failing to file with the correct marital status can lead to complications, including IRS notices and potential audits. Your federal tax filing status must change for the tax year in which the marriage was established.

Navigating Changes in Circumstances

If a couple forms a valid common-law marriage in a state that recognizes it and subsequently moves to a state that does not, the new state of residence and the IRS will continue to recognize the marriage. This concept of portability means that a change in domicile does not dissolve the marriage for tax purposes. A marriage validly entered into in one state will be recognized for federal tax purposes even if the couple later resides in a state that does not permit the formation of such marriages.

Ending a common-law marriage has specific legal requirements. A couple in a recognized common-law marriage cannot simply decide to separate and start filing their taxes as single individuals. For the IRS to recognize the termination of the marriage, the couple must obtain a formal decree of divorce, annulment, or dissolution from a court.

Until a court legally dissolves the union, the individuals are still considered married in the eyes of the IRS. This means they must continue to file their federal tax returns using either the Married Filing Jointly or Married Filing Separately status, regardless of whether they are living apart.

Filing and Amending Tax Returns

If a couple determines they were in a valid common-law marriage for prior years but filed their tax returns as Single or Head of Household, they must amend those returns. The process involves filing Form 1040-X, Amended U.S. Individual Income Tax Return, for each tax year that needs correction. A separate Form 1040-X must be filed for every year the filing status was incorrect.

When completing Form 1040-X, you will need to provide information from the original return, including the initial filing status, income, deductions, and credits. You will then enter the corrected figures based on your new married filing status. The form requires a clear explanation of the changes being made, stating that you are amending the return to reflect your marital status based on a recognized common-law marriage.

After completing the necessary forms, they must be mailed to the IRS service center designated in the Form 1040-X instructions. The processing time for an amended return can take several weeks. Once the IRS processes the amended return, you may receive a refund, a bill for additional tax owed, or correspondence requesting more information.