United States

Final regulations released defining marital status


On Sept. 2, 2016, the Treasury Department released final regulations regarding the definition of married for tax purposes, amending the previously issued proposed regulations. The regulations create statutory authority for the definition of husband and wife, husband, wife and spouse. The term spouse will mean an individual lawfully married to another individual. The terms husband and wife mean two individuals lawfully married to each other. The regulations draw a distinction between individuals who have entered into a registered domestic partnership, civil union or other similar formal arrangement and those that have entered into a relationship denominated as marriage. Individuals entered into arrangements other than that defined as marriage are not considered married for federal tax purposes.

Unlike the proposed regulations, the final regulations draw a definitional distinction between a foreign marriage, which is one entered into overseas and a domestic marriage, which is entered into within the United States. A foreign marriage must first be recognized as marriage under the foreign law of the country in which the marriage was entered. It may then be recognized for federal tax purposes if it is recognized by any state, possession or territory of the United States, regardless of domicile. This requires couples who were married overseas to analyze the marriage laws of multiple states to determine if they are considered married under the law of any one state and thus married for federal tax purposes. This also allows couples married and domiciled overseas to be married for U.S. tax purposes without having resided in the United States at any time. For marriages entered into within the United States, the regulations default to the definition of marriage in the state, possession or territory in which the marriage is entered, regardless of domicile. The final regulations made this distinction for U.S. marriages to prevent potential conflict among state laws. This also prevents marriage laws of one state applying to couples who enter into legal relationships outside that state.

The regulations were intentionally gender neutral to be consistent with Windsor and Obergefell. One individual who commented on the proposed regulations suggested the IRS update forms to reflect gender neutrality. While outside the scope of these regulations, the Treasury and IRS stated it would consider that recommendation when updating IRS forms and publications.

The IRS issued Rev. Rul. 2013-17 in light of the Windsor decision clarifying how the IRS defined married for tax purposes. These new regulations provide higher precedence for the definition of married for tax purposes and codify the IRS’s stance since the 2013 revenue ruling.


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