More DOMA Musings — Married But Living in a Non-Recognition State

Here’s another question that’s come up. There are many same-sex couples from non-recognition states that came to “recognition” states to get married. For example, couples from Missouri or Nebraska drive to Iowa to get a marriage certificate. But then they drive back to Missouri or Nebraska and live there.

How does the DOMA ruling impact taxes for people in this situation?

IRS Revenue Ruling 58-66 says marital status is determined at the state level and does not change even if you move to a state that doesn’t recognize your marriage. RR 58-66 involved common-law marriage. If you are common-law married in a state that recognizes common-law marriage and then move to a state that doesn’t recognize common-law marriage, you’re still married for federal tax purposes. From that ruling:

The foregoing position of the Internal Revenue Service with respect to a common-law marriage is equally applicable in the case of taxpayers who enter into a common-law marriage in a state which recognizes such relationship and who later move into a state in which a ceremony is required to initiate the marital relationship.

But would this Revenue Ruling from 1958 regarding common-law marriage apply to same-sex couples from states like Missouri or Nebraska who drive to Iowa to get a marriage certificate but who actually live in Missouri or Nebraska, or some other non-recognition state? Or what if you live in Iowa, get married, but then change jobs and end up having to move to a state that doesn’t recognize your marriage?

And how would a couple in this situation file their state return? Would they need to file their federal return as a married couple, do separate “mock” single person returns and then use those mock returns to prepare their state return?

I am not sure. I haven’t dealt with common-law marriage before, so don’t know how that piece works and how applicable the common-law rules would be to same-sex couples.

My hope is that the IRS will release more information, sooner rather than later, to address things like this.