Can unmarried parents file jointly in California?

Hi. My parents have filed their tax returns jointly for years, even though they are not married. My mother does not make any income. My parents have lived for several years as a couple in California. Did they file their returns correctly or should my father amend and claim my mother as dependent? Or should he file as head of household? If so, what IRS form should I use to make the change? Thank you.

Good news: the IRS treats common law marriages the same as “official” marriages. The IRS does not however define common law marriage and instead refers to the state law. So, if your parents are considered to be in a common law marriage by state law – they are fine with the IRS.

Bad news: California, as far as I know, does not recognize common law marriage.

More good news: The IRS offers a loophole. If your parents once upon a time initiated their common law marriage in a state where it was recognized, they would be considered legally married by the IRS, even while living in California. The way it works here in Texas is: if a couple checks into a Texas hotel as husband and wife and hold themselves out as married during that stay – their common law marriage would be generally recognized by Texas law. From now on, anywhere they live they are married for the IRS purposes. Maybe your parents could qualify using this loophole.

If however they are positive that they never “initiated” such common law marriage in one of the states where it is recognized – then they may indeed have to change their filing status, using IRS Form 1040X, Amended Tax Return.

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