Gay Marriage: Taxation of Social Security Payments in Community Property States

The tax rules for married gay couples living in community property states, such as California, are complicated.  At the federal level, married gay couples must split their income and deductions 50/50 on their separate federal returns.  (Remember, married gay couples can’t file joint returns; the only allowable filing statuses are single or head of household.)

There is confusion over whether Social Security payments are considered to be community property.  The IRS has issued two opinions on the matter recently, but Professor Pat Cain from the Santa Clara Law School says the issue still isn’t, but she thinks Social Security payments are community property:

 I think social security payments are community property of RDPs and same-sex spouses in the three community property states that recognize their relationships.  And I don’t understand why the IRS can’t spend a bit more time analyzing these issues, the way it has analyzed similar issues in the past for spouses in community property states.  But I am pleased that they are consistently publicizing the message that they will continue to recognize state property law rights, even when those rights are held by same-sex couples.

Professor Cain is a great resource on tax issues of same-sex married couples and has been a big help to me in my own research into these issues.  You can find her full blog post here.

(NOTE:  If you are a same-sex married couple in Iowa, this discussion does NOT apply to you because Iowa is not a community property state.)