State Taxes and Married Same-Sex Couples (Posted on October 21, 2014 by )


Carol V. Calhoun
Carol V. Calhoun, President
Calhoun Law Group, P.C.
9112 Lindale Drive
Bethesda, MD 20817-3441
Office Phone: (202) 441-5592
Telefax: (301) 564-1941
E-mail: Click here to send e-mail.

The Internal Revenue Service has now announced that same-sex couples married in a jurisdiction that permits such marriages will be treated as married for federal tax purposes, even if they live in a jurisdiction that does not recognize such marriages. But what about such couples’ recognition as married for purposes of state income taxes? The question is of concern not only to individuals, but to their employers which must determine proper state income tax withholding. In addition, employers which are in many instances expanding spousal coverage for same-sex partners under employee benefit plans will need to know the characterization of such coverage for purposes of state taxes. For example, an employer that provides spousal health coverage to a same-sex employee may be required to include the cost of such coverage in the employee’s state Form W-2 or equivalent, even though it would be excluded from the employee’s income for federal tax purposes.

Many would no doubt assume that whether a state will treat couples as married for tax purposes depends on whether it would recognize their marriages generally. However, that may not necessarily be the case. The issue arises because most states use a federal definition of income (either federal adjusted gross income or federal taxable income) for purposes of calculating state income taxes. Legally married same-sex couples will now file federal returns (and calculate federal adjusted gross income and federal taxable income) using either joint filing status or married filing separately status. Thus, the question arises whether married same-sex couples may (or are required to) use such status at the state level, even in states that do not otherwise recognize their marriages.

The chart below shows the extent of the potential issues. In the following states, the issue of treating same-sex couples as married for state income tax purposes does not arise, either because the state has no income tax or because the state taxes only interest and dividends and does not provide a separate rate structure for single and married taxpayers:

  • Alaska
  • Florida
  • Nevada
  • New Hampshire
  • South Dakota
  • Tennessee
  • Texas
  • Washington
  • Wyoming

In each of the following states, same-sex married couples will now file state income taxes as married, because the state allows same-sex marriage:

  • Arizona
  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Idaho
  • Illinois
  • Indiana
  • Iowa
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • New Jersey
  • New Mexico
  • New York
  • North Carolina
  • Oklahoma
  • Oregon
  • Pennsylvania
  • Rhode Island
  • Utah
  • Vermont
  • Virginia
  • West Virginia
  • Wisconsin

In the following states, same-sex marriage is not recognized and there is no conformity between federal and state taxes, so same-sex married couples will have to file as if they were single:

  • Alabama
  • Arkansas
  • Michigan
  • Mississippi

The following states do not recognize same-sex marriage, but conform to federal tax law:

The law in each of them is discussed in more detail below.

Georgia

Nothing in Georgia statutes specifically says who is permitted to file a joint return. However, given that there is a state Constitutional ban on recognition of same-sex marriage in Georgia, the Georgia Department of Revenue has announced that same-sex married couples must file Georgia state taxes as if they were single.

Kansas

Kan. Stat. Ann. § 79-32,109 states as follows:

Any term used in this act shall have the same meaning as when used in a comparable context in the federal internal revenue code.

This would presumably apply for purposes of the definitions of “husband” and “wife” in Kan. Stat. Ann. § 79-32,115, which states as follows:

If both husband and wife are residents, and if their federal taxable income is determined on a joint federal return, their Kansas taxable income shall be reported and taxed on the basis of a joint Kansas income tax return.

Nevertheless, because the Kansas Constitution prohibits the recognition of same-sex marriage, the Kansas Revenue Department has now ruled that same-sex married couples must file Kansas state taxes as if they were single.

The Kansas Revenue Department’s position will presumably have to be revisited now that the Supreme Court has denied certiorari in Kitchen v. Herbert (10th Cir. 2014).

Kentucky

Ky. Rev. Stat. Ann. § 141.020 states as follows:

The determination of marital status for the purpose of this section shall be made in the manner prescribed in Section 153 of the Internal Revenue Code[.]

Given that there is a state Constitutional ban on recognition of same-sex marriage in Kentucky, Kentucky Tax Alert, Kentucky Department of Revenue, November 2013, ¶ 203-062 has nevertheless taken the position that same-sex couples must file Kentucky state taxes as if they were single.

The Kentucky Department of Revenue’s position will presumably have to be revisited unless the appeal of Love v. Beshear (W.D. Kentucky 2014) is successful.

Louisiana

Louisiana RS § 10 states that, “A husband and wife may make a single return jointly.” It does not include a cross-reference to the Internal Revenue Code for the definition of “husband” or “wife,” nor does it reference federal filing status. Accordingly, the Louisiana Revenue Secretary has taken the position that same-sex married couples must file Louisiana state taxes as if they were single.

Missouri

§ 143.091, RSMo states as follows:

Any term used in sections 143.011 to 143.996 shall have the same meaning as when used in a comparable context in the laws of the United States relating to federal income taxes, unless a different meaning is clearly required by the provisions of sections 143.011 to 143.996.

This would presumably apply for purposes of the definitions of “husband” and “wife” in § 143.031, RSMo, which states as follows:

A husband and wife who file a joint federal income tax return shall file a combined return. A husband and wife who do not file a joint federal income tax return shall not file a combined return.

Notwithstanding the fact that there is a state Constitutional ban on recognition of same-sex marriage in Missouri, Missouri Gov. Jay Nixon issued an executive order permitting married same-sex couples to file joint Missouri state tax returns. Moreover, Missouri has now agreed to recognize same-sex marriages from other states for nontax purposes, as well.

Montana

Mont. Code Ann. § 15-30-142 states as follows:

In accordance with instructions set forth by the department, each taxpayer who is married and living with husband or wife and is required to file a return may, at the taxpayer’s option, file a joint return with husband or wife even though one of the spouses has neither gross income nor deductions.

If a joint return has been filed for a tax year, the spouses may not file separate returns after the time for filing the return of either has expired unless the department consents.

Because there is no cross-reference to the Internal Revenue Code for the definition of “married,” “husband,” “wife,” or “spouses,” same-sex married couples must file Montana state taxes as if they were single.

Presumably, this position will need to be revisited unless Latta v. Otter (9th Cir. 2014) is successfully appealed.

Nebraska

Nothing in Nebraska law states explicitly who is required or permitted to file a joint return. The previous instructions to Form 1040N stated that, “Your Nebraska filing status MUST be the same as your federal filing status.” However, based on a state Constitutional ban on recognition of same-sex marriage in Nebraska, the Nebraska Department of Revenue has issued a ruling that individuals in a same-sex marriage must file Nebraska state taxes as if they were single.

North Dakota

N.D. Cent. Code § 57-38-30.3 states as follows:

The tax for individuals is equal to North Dakota taxable income multiplied by the rates in the applicable rate schedule in subdivisions a through d corresponding to an individual’s filing status used for federal income tax purposes.

Nevertheless, the North Dakota Tax Commissioner has now indicated that same-sex couples must file North Dakota state taxes as if they were single. A new Schedule ND-1S has been created to make the necessary calculations.

Ohio

Ohio Rev. Code § 5747.01 states as follows:

Except as otherwise expressly provided or clearly appearing from the context, any term used in this chapter that is not otherwise defined in this section has the same meaning as when used in a comparable context in the laws of the United States relating to federal income taxes or if not used in a comparable context in those laws, has the same meaning as in section 5733.40 of the Revised Code.

Nevertheless, given that there is a state Constitutional ban on recognition of same-sex marriage in Ohio, the Ohio Department of Taxation takes the position that same-sex married couples must file Ohio state taxes as if they were single.

The Ohio Department of Taxation’s position will presumably have to be revisited unless the appeal of Henry v. Himes (S. D. Ohio 2014) is successful.

South Carolina

S.C. Code Ann. § 12-6-40 states as follows:

For purposes of this title, “Internal Revenue Code” is deemed to contain all changes necessary for the State to administer its provisions.

While the language is somewhat opaque, it appears that this is intended to mean that terms in the South Carolina Code relating to taxes will have the same meaning as the same terms in the Internal Revenue Code. This would presumably include the terms “husband” and “wife” in S.C. Code Ann. § 12-6-5000, which states as follows:

If both a husband and wife are residents, and if their federal taxable income is determined on a joint federal return, their South Carolina taxable income must be reported and taxed on the basis of a joint South Carolina income tax return.

However, given that there is a state Constitutional ban on recognition of same-sex marriage in South Carolina, the instructions for the South Carolina tax return stat that, “South Carolina does not recognize same sex marriage. If a same sex couple is able to file a federal return with a married status, they must file as single or head of household for South Carolina purposes.”

The position taken in the instructions for the South Carolina tax return will presumably have to be revisited now that the Supreme Court has denied certiorari in Bostic v. Schaefer (4th Cir. 2014).

State Tax Rules for Same-Sex Couples
STATE Conformity With Internal Revenue Code Recognition of Same-Sex Relationships Generally Same-Sex Married Couples Can File State Income Taxes as Married?
ALABAMA no conformity Constitutional ban on recognition of same-sex marriage No.
ALASKA no state income tax same-sex marriage N/A
ARIZONA fixed date same-sex marriage Yes.
ARKANSAS no conformity Constitutional ban on recognition of same-sex marriage was struck down in Wright v. Arkansas (Pulaski County 2014). However, the Arkansas Supreme Court has stayed the decision pending appeal. No. However, this position will presumably need to be revisited unless the lower court’s decision is overturned on appeal.
CALIFORNIA fixed date same-sex marriage Yes.
COLORADO no separate rates for couples same-sex marriage Yes.
CONNECTICUT rolling same-sex marriage Yes.
DELAWARE rolling same-sex marriage Yes.
DISTRICT OF COLUMBIA rolling same-sex marriage Yes.
FLORIDA no state income tax Constitutional ban on recognition of same-sex marriage struck down in Huntsman v. Heavilin (Monroe County 2014). The decision has been stayed pending further proceedings. N/A
GEORGIA fixed date Constitutional ban on recognition of same-sex marriage No.
HAWAII fixed date same-sex marriage Yes.
IDAHO fixed date same-sex marriage Yes.
ILLINOIS no separate rates for couples same-sex marriage Yes.
INDIANA no separate rates for couples same-sex marriage Yes.
IOWA fixed date same-sex marriage Yes.
KANSAS rolling Constitutional ban on recognition of same-sex marriage. However, Kansas is part of the Tenth Circuit, which struck town a ban on same-sex marriage in Kitchen v. Herbert, cert. denied (2014). The Kansas ban will therefore also presumably be struck down. No. However, this provision will presumably need to be revisited now that the Supreme Court has denied certiorari in Kitchen v. Herbert.
KENTUCKY fixed date Constitutional ban on recognition of same-sex marriages struck down in Love v. Beshear (W.D. Kentucky 2014). The decision has been stayed pending appeal. No. However, this position will presumably need to be revisited unless the District Court’s decision is overturned on appeal.
LOUISIANA rolling Constitutional ban on recognition of same-sex marriage No.
MAINE fixed date same-sex marriage Yes.
MARYLAND rolling same-sex marriage Yes.
MASSACHUSETTS no separate rates for couples same-sex marriage Yes.
MICHIGAN no separate rates for couples Constitutional ban on recognition of same-sex marriage was struck down in DeBoer v. Snyder (E.D. Michican 2014). The decision has been stayed by the Sixth Circuit pending appeal. No. However, this position will presumably need to be revisited unless the District Court’s decision is overturned on appeal.
MINNESOTA fixed date same-sex marriage Yes.
MISSISSIPPI no conformity Constitutional ban on recognition of same-sex marriage No.
MISSOURI rolling Although Missouri has a Constitutional ban on same-sex marriage, its Attorney General has now announced that he will not appeal Barrier v. Vasterling, (Jackson County Circuit Court 2014), which required the state to recognize same-sex marriages from other states. Yes.
MONTANA rolling Constitutional ban on recognition of same-sex marriage. Howevewr, Montana is part of the Ninth Circuit. In Latta v. Otter (9th Cir. 2014), that Circuit struck down a ban on same-sex marriage. Thus, Montana’s ban on same-sex marriage will presumably be struck down as well. No. However, this provision will presumably need to be revisited unless Latta v. Otter (9th Cir. 2014) is successfully appealed.
NEBRASKA fixed date Constitutional ban on recognition of same-sex marriage No.
NEVADA no state income tax same-sex marriage N/A
NEW HAMPSHIRE tax imposed on interest & dividends only; no separate rates for couples same-sex marriage N/A
NEW JERSEY no conformity same-sex marriage Yes.
NEW MEXICO rolling same-sex marriage Yes.
NEW YORK rolling same-sex marriage Yes.
NORTH CAROLINA fixed date same-sex marriage Yes.
NORTH DAKOTA rolling Constitutional ban on recognition of same-sex marriage No.
OHIO rolling Constitutional ban on recognition of same-sex marriage. A District Court decision has recognized same-sex marriages from other states for purposes of death certificates.
Another District Court has struck down the ban on recognition of same-sex marriages from other states, although the decision was stayed as to all couples other than the four named plaintiffs pending appeal.
No. However, this position will presumably need to be revisited unless the District Court’s decision in Henry v. Himes is overturned on appeal.
OKLAHOMA rolling same-sex marriage Yes.
OREGON rolling same-sex marriage Yes.
PENNSYLVANIA no separate rates for couples same-sex marriage Yes.
RHODE ISLAND rolling same-sex marriage Yes.
SOUTH CAROLINA fixed date Constitutional ban on recognition of same-sex marriage. However, South Carolina is part of the Fourth Circuit. In Bostic v. Schaefer (4th Cir. 2014), that Circuit struck down a ban on same-sex marriage, and the Supreme Court has denied certiorari in the case. Thus, South Carolina’s ban on same-sex marriage will presumably be struck down as well. No. However, this position will presumably need to be revisited now that the Supreme Court has denied certiorari in Bostic v. Schaefer.
SOUTH DAKOTA no state income tax Constitutional ban on recognition of same-sex marriage N/A
TENNESSEE tax imposed on interest & dividends only; no separate rates for couples Constitutional ban on recognition of same-sex marriage. The portion of the ban relating to recognition of same-sex marriages from other jurisdictions was struck down as to three couples in Tanco v. Haslam (M.D. Tennessee 2014), but the decision by its terms is limited to those three couples. By contrast, in Borman v. Borman (Roane County Circuit Court 2014), the judge upheld the state’s ban on recognizing a same-sex marriage from another state for purposes of a divorce action. N/A
TEXAS no state income tax Constitutional ban on same-sex marriage was struck down in DeLeon v Perry (W.D. Texas 2014) and in A.L.F.L. v. K.L.L. (438th Judicial District, Bexar County, Texas). Both the federal and state court decisions have been stayed pending appeal. N/A
UTAH no separate rates for couples same-sex marriage Yes.
VERMONT fixed date same-sex marriage Yes.
VIRGINIA fixed date same-sex marriage Yes.
WASHINGTON no state income tax same-sex marriage N/A
WEST VIRGINIA fixed date same-sex marriage Yes.
WISCONSIN fixed date same-sex marriage Yes.
WYOMING no state income tax same-sex marriage N/A
Footnotes:
1. Alaska has same-sex marriage, but does not have an income tax.
2. The Florida constitutional ban on same-sex marriage was struck down in Huntsman v. Heavilin (Monroe County 2014). The decision has been stayed pending further proceedings.
3. Nevada has same-sex marriage, but does not have an income tax.
4. New Hampshire has same-sex marriage, but imposes its income tax only on interest and dividends, and does not distinguish between married and single taxpayers.
5. The Tennessee constitutional ban on recognizing same-sex marriages from other jurisdictions was struck down as to three couples in Tanco v. Haslam (M.D. Tennessee 2014). The judge denied the state’s request to stay the decision pending appeal. However, the decision by its terms affects only the three named couples, not other married same-sex couples in Tennessee. By contrast, in Borman v. Borman (Roane County Circuit Court 2014), the judge upheld the state’s ban on recognizing a same-sex marriage from another state for purposes of a divorce action.
6. The Texas constitutional ban on same-sex marriage was struck down in DeLeon v. Perry (W.D. Texas 2014) and in A.L.F.L. v. K.L.L. (438th Judicial District, Bexar County, Texas). Both the federal and state court decisions have been stayed pending appeal.
7. Washington has same-sex marriage, but does not have an income tax.
8. Wyoming has same-sex marriage, but does not have an income tax.
9. The Arkansas constitutional ban on same-sex marriage was struck down in Wright v. Arkansas (Pulaski County 2014). However, the Arkansas Supreme Court has stayed the decision pending appeal.
10. Although Michigan does not have a separate rate structure for married couples, marital status is nevertheless used in determining the number of exemptions, the taxability of employer-provided health care, and the like. And MCL 206.311 states as follows:
Taxpayers who are husband and wife and who file a joint federal income tax return pursuant to the internal revenue code shall file a joint return.

Since the statute requires that taxpayers be husband and wife under Michigan law, as well as filing a joint federal return, the Michigan Department of Treasury takes the position that same-sex married couples may not file a joint Michigan state income tax return.

The Michigan constitutional ban on same-sex marriage was struck down in DeBoer v. Snyder (E.D. Michigan 2014). The decision has been stayed by the Sixth Circuit pending appeal.

11. Kansas is part of the Tenth Circuit, which struck town a ban on same-sex marriage in Kitchen v. Herbert, cert. denied (2014). The Kansas ban will therefore also presumably be struck down.
12. The Kentucky constitutional ban on same-sex marriages was struck down in Love v. Beshear (W.D. Kentucky 2014). The decision has been stayed pending appeal.
13. The Lousisian constitutional ban on same-sex marriages was upheld in Robicheaux v. Caldwell (E.D. Lousiana 2014).
15. Montana is part of the Ninth Circuit. In Latta v. Otter (9th Cir. 2014), that Circuit struck down a ban on same-sex marriage. Thus, Montana’s ban on same-sex marriage will presumably be struck down as well.
16. In Obergefell v. Wymyslo (W. D. Ohio 2013), the court recognized same-sex marriages from other states for purposes of death certificates, with language that suggests the ban on recognizing such marriages generally may be in doubt, but the decision by its terms is limited to death certificates. In Henry v. Himes (S. D. Ohio 2014), the court struck down the ban on recognition of same-sex marriages from other states, although the decision was stayed as to all couples other than the four named plaintiffs pending appeal.
17. South Carolina is part of the Fourth Circuit. In Bostic v. Schaefer (4th Cir. 2014), that Circuit struck down a ban on same-sex marriage, and the Supreme Court has denied certiorari in the case. Thus, South Carolina’s ban on same-sex marriage will presumably be struck down as well.
18. “Rolling” means the state tax is based on the current version of the Internal Revenue Code. “Fixed date” means the state income tax is based on the Internal Revenue Code as it existed on some historical date chosen by the state legislature.
19. Represents the current position of the relevant state taxing authorities, not including ongoing challenges to such position.
Alaska has same-sex marriage, but does not have an income tax.
The Florida constitutional ban on same-sex marriage was struck down in Huntsman v. Heavilin (Monroe County 2014). The decision has been stayed pending further proceedings.
Nevada has same-sex marriage, but does not have an income tax.
New Hampshire has same-sex marriage, but imposes its income tax only on interest and dividends, and does not distinguish between married and single taxpayers.
The Tennessee constitutional ban on recognizing same-sex marriages from other jurisdictions was struck down as to three couples in Tanco v. Haslam (M.D. Tennessee 2014). The judge denied the state’s request to stay the decision pending appeal. However, the decision by its terms affects only the three named couples, not other married same-sex couples in Tennessee. By contrast, in Borman v. Borman (Roane County Circuit Court 2014), the judge upheld the state’s ban on recognizing a same-sex marriage from another state for purposes of a divorce action.
The Texas constitutional ban on same-sex marriage was struck down in DeLeon v. Perry (W.D. Texas 2014) and in A.L.F.L. v. K.L.L. (438th Judicial District, Bexar County, Texas). Both the federal and state court decisions have been stayed pending appeal.
Washington has same-sex marriage, but does not have an income tax.
Wyoming has same-sex marriage, but does not have an income tax.
The Arkansas constitutional ban on same-sex marriage was struck down in Wright v. Arkansas (Pulaski County 2014). However, the Arkansas Supreme Court has stayed the decision pending appeal.
Although Michigan does not have a separate rate structure for married couples, marital status is nevertheless used in determining the number of exemptions, the taxability of employer-provided health care, and the like. And MCL 206.311 states as follows:
Taxpayers who are husband and wife and who file a joint federal income tax return pursuant to the internal revenue code shall file a joint return.

Since the statute requires that taxpayers be husband and wife under Michigan law, as well as filing a joint federal return, the Michigan Department of Treasury takes the position that same-sex married couples may not file a joint Michigan state income tax return.

The Michigan constitutional ban on same-sex marriage was struck down in DeBoer v. Snyder (E.D. Michigan 2014). The decision has been stayed by the Sixth Circuit pending appeal.

Kansas is part of the Tenth Circuit, which struck town a ban on same-sex marriage in Kitchen v. Herbert, cert. denied (2014). The Kansas ban will therefore also presumably be struck down.
The Kentucky constitutional ban on same-sex marriages was struck down in Love v. Beshear (W.D. Kentucky 2014). The decision has been stayed pending appeal.
The Lousisian constitutional ban on same-sex marriages was upheld in Robicheaux v. Caldwell (E.D. Lousiana 2014).
Montana is part of the Ninth Circuit. In Latta v. Otter (9th Cir. 2014), that Circuit struck down a ban on same-sex marriage. Thus, Montana’s ban on same-sex marriage will presumably be struck down as well.
In Obergefell v. Wymyslo (W. D. Ohio 2013), the court recognized same-sex marriages from other states for purposes of death certificates, with language that suggests the ban on recognizing such marriages generally may be in doubt, but the decision by its terms is limited to death certificates. In Henry v. Himes (S. D. Ohio 2014), the court struck down the ban on recognition of same-sex marriages from other states, although the decision was stayed as to all couples other than the four named plaintiffs pending appeal.
South Carolina is part of the Fourth Circuit. In Bostic v. Schaefer (4th Cir. 2014), that Circuit struck down a ban on same-sex marriage, and the Supreme Court has denied certiorari in the case. Thus, South Carolina’s ban on same-sex marriage will presumably be struck down as well.
“Rolling” means the state tax is based on the current version of the Internal Revenue Code. “Fixed date” means the state income tax is based on the Internal Revenue Code as it existed on some historical date chosen by the state legislature.
Represents the current position of the relevant state taxing authorities, not including ongoing challenges to such position.